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