Lewis v. Ponce

Filing 49

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 09/03/18 RECOMMENDING that petitioner's motion to set aside the judgment of this court should be denied. Motion 44 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEYMON LEWIS, JR.,

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Petitioner,

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No. 2:16-cv-01578-JAM-GGH
FINDINGS AND RECOMMENDATIONS

v.
FELICIA PONCE,

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Respondent.

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PROCEDURAL HISTORY

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Petitioner appeared in this habeas matter pro se and in forma pauperis. The district court

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dismissed the petition by an Order entered on August 4, 2017, ECF No. 30, and judgment was

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entered the same day. ECF No. 31. Petitioner appealed the judgment on August 14, 2017, ECF

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No. 32, and sought to amend the judgment on the same date. ECF No. 33. The Ninth Circuit

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Court of Appeals assigned case number 17-16672 to the appeal on August 23, 2017, ECF No. 35,

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and on October 3, 2017 ordered the matter be held in abeyance until the district court resolution

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of petitioner’s motion to amend the judgment. EXF No. 37. The district court denied the motion

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by minute order entered on October 10, 2017, ECF No. 38, and on January 30, 2018 the Court of

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Appeals denied petitioner’s request for a certificate of appealability, ECF No. 39, effectively

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terminating the appeal.

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Now pending before the court is petitioner’s Motion to Set Aside the Judgment in this

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matter filed on July 12, 2018 pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

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ECF No. 40.

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DISCUSSION

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Rule 60 allows the court to relief a litigant from a final judgment or order within a

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reasonable time, not to exceed one year after its entry, if the basis for doing so is either mistake,

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inadvertence, surprise or excusable neglect, newly discovered evidence, or the fraud,

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misrepresentation, or misconduct of an opposing party. F. R. Civ. P. 60(c)(1). Petitioner here

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argues that the district court made a “mistake” in finding it had no jurisdiction over his petition

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and that he is, therefore, entitled to have the judgment set aside. The court has reviewed the

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findings and recommendations, ECF No. 28, and the district court’s adoption thereof, ECF No.

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30, and finds no mistake or error.

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CONCLUSION
Petitioner has not borne the burden of demonstrating that the court’s and the district

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court’s rulings in this matter were the result of a mistake of law. In light thereof IT IS HEREBY

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RECOMMENDED that:
Petitioner’s Motion to set aside the judgment of this court should be denied.

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Within fourteen days after being served with these findings and recommendations,

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petitioner may file written objections with the court. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” The petitioner is advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO RECOMMENDED.
Dated: September 3, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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