(HC) Gabaldon v. Warden

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/07/19 RECOMMENDING that petitioner's 07/18/19 request, construed as a motion for relief from judgment pursuant to Rule 60(b) 16 be denied. Motion 16 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LINDA TAMMY GABALDON, 12 13 14 15 No. 2:18-cv-1853-MCE-EFB P Petitioner, v. FINDINGS AND RECOMMENDATIONS ATTORNEY GENERAL, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. By order filed January 4, 2019, this action was summarily 19 dismissed. ECF No. 14. Judgment was entered on the same day. ECF No. 15. On July 18, 20 2019, after the case was closed, petitioner filed a two-sentence request to reopen her case. ECF 21 No. 16. In an abundance of caution, the court construes petitioner’s request as a motion for relief 22 from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. So construed, the 23 motion must be denied. 24 Rule 60(b) provides for reconsideration of a final judgment where one of more of the 25 following is shown: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 26 discovered evidence which, with reasonable diligence, could not have been discovered within 27 twenty-eight days of entry of judgment; (3) fraud, misrepresentation, or misconduct of an 28 opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; and (6) any other 1 1 reason justifying relief. Fed. R. Civ. P. 60(b). A motion for reconsideration on any of these 2 grounds must be brought within a reasonable time, and no later than one year, of the entry of the 3 judgment or the order being challenged. Id. Additionally, Local Rule 230(j) requires a party 4 filing a motion for reconsideration to show the “new or different facts or circumstances claimed 5 to exist which did not exist or were not shown upon such prior motion, or what other grounds 6 exist for the motion.” E.D. Cal. Local Rule 230(j). 7 Here, petitioner’s motion fails to address these standards and otherwise sets forth no basis 8 for reconsideration of the court’s final order. Thus, petitioner has failed to meet her burden under 9 Rule 60(b). 10 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s July 18, 2019 request, 11 construed as motion for relief from judgment pursuant to Rule 60(b) (ECF No. 16), be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be served and filed within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 20 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: October 7, 2019. 22 23 24 25 26 27 28 2

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