Diaz v. Cate et al

Filing 25

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT (Illston, Susan) (Filed on 1/18/2012) (Additional attachment(s) added on 1/18/2012: # 1 Certificate/Proof of Service) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DIAZ,
Petitioner,

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No. C 08-4744 SI (PR)
ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT

v.
TOM FELKER, Warden,
Respondent.

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/

United States District Court
For the Northern District of California

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The Court denied the habeas petition filed in the above-titled action, declined to issue a

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certificate of appealability, and entered judgment in favor of respondent on August 30, 2010.

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On December 9, 2010, petitioner filed an untimely notice of appeal in the Ninth Circuit Court

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of Appeals. On January 28, 2011, the Ninth Circuit dismissed the appeal for lack of jurisdiction.

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The appellate court issued its mandate on February 3, 2011. On March 1, 2011, petitioner filed

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for a rehearing, which the Ninth Circuit denied on March 22, 2011. Petitioner now moves this

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Court pursuant to Federal Rule of Civil Procedure 60(b) to vacate the order denying the petition

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and the judgment and then to re-enter them so as to permit him to file a timely notice of appeal.

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(Docket No. 24.) For the reasons described herein, petitioner’s motion is DENIED on two

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grounds.

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First, Federal Rule of Appellate Procedure 4(a)(6), explicitly sets time limits for filing a

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motion in the district court to reopen the time to appeal when a party did not receive notice of

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entry of judgment. That rule provides that the petitioner must have failed to receive notice of

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entry of judgment within 21 days after entry of judgment, and that the motion to reopen must be

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filed within 180 days after entry of judgment or within 14 days after the moving party receives

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notice of entry of judgment. Fed. R. App. P. 4(a)(6). Petitioner admits that he was first notified

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of the Court’s judgment in November 2010 by his attorney.1 However, the instant motion for

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relief was not filed until April 15, 2011, which is more than 14 days after November 30, 2010,

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and more than 180 days after the Court entered judgment. Because petitioner does not meet the

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standard of Rule 4(a)(6), there is no basis for relief.

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Second, petitioner does not meet the requirements of Rule 60(b), which provides for

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reconsideration where one or more of the following is shown: (1) mistake, inadvertence,

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surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not

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have been discovered before the court’s decision; (3) fraud by the adverse party; (4) the

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judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief.

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Fed. R. Civ. P. 60(b); School Dist. No. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993).

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“Rule 60(b) [ ] provides a mechanism for parties to seek relief from a judgment when “it is no

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longer equitable that the judgment should have prospective application,” or when there is any

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other reason justifying relief from judgment. Jeff D. v. Kempthorne, 365 F.3d 844, 851 (9th

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Cir.2004) (quoting Fed. R. Civ. P. 60(b)).

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There are very limited circumstances in which the district court can vacate its prior

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judgment pursuant to a Rule 60(b) motion filed after the time to appeal has expired, as it has

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here, and re-enter judgment to permit the filing of a timely notice of appeal. Rodgers v. Watt,

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722 F.2d 456, 458–59 (9th Cir.1983) (en banc). Relief under Watt is available only where the

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petitioner can demonstrate due diligence and excusable neglect, and then only where the

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Petitioner does specify what day in November 2010. Out of caution, the Court will
assume that day to be the last day of that month, the 30th.
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excusable neglect arose after expiration of the time to file a motion for extension of time to file

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an appeal under Fed. R. App. P. 4(a)(5); Watt, 722 F.2d at 459. However, “[w]hen relief from

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judgment is sought after the thirty day period allowed by Rule 4(a)(5), the applicability of the

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Rule 60(b)(1) excusable neglect standard may be questioned as being counter to the policy

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indicated by Rule 4(a)(5)’s time limitation.” Watt, 722 F.2d at 459.

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Petitioner alleges that the Court should grant his motion on grounds that he exercised due

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diligence and there was excusable neglect. Petitioner has shown neither. He alleges that he did

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not receive notice of the judgment because he “did not think to notify” his attorney or this Court

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of his change of address. When he finally did receive notice in November 2010, he failed to act

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diligently, and delayed filing anything with the Court until five months later, in April 2011.

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Such a record does not show due diligence or excusable neglect.

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Petitioner contends that he was relying on his attorney, who was not representing him in

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his habeas action, but who was giving him legal advice. He relied on her to inform him when

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the Court issued its judgment, and what steps to take after. His assertion of reliance is flatly

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contradicted by his failure to inform his attorney or this Court of his change of address. His

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attorney admits that she failed to stay apprised of the case’s progress.

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communicated with petitioner “for almost a year at the time the District Court decision was

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issued” because she “was simply busy with other professional and personal matters and did not

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realize so much time had gone by while the case was inactive.” She asserts that she relied on

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petitioner to notify her when the Court issued its decision, and that she also expected to find out

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through her “periodic checking of the Court’s website.” Petitioner’s failure to stay in touch with

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his attorney and the Court, his attorney’s failure to stay in contact with her client, and her failure

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to perform the most basic tasks required of an attorney, such as conducting simple research, are

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not evidence of due diligence or excusable neglect.

She had not

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Relief under Rule 60(b)(6) requires a party to “show ‘extraordinary circumstances,’

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suggesting that the party is faultless in the delay.” Pioneer Inv. Services Co. v. Brunswick

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Associates Ltd., 507 U.S. 380, 393 (1993). Such relief “normally will not be granted unless the

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moving party is able to show both injury and that circumstances beyond its control prevented

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timely action to protect its interests.” United States v. Alpine Land & Reservoir Co., 984 F.2d

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1047, 1049 (9th Cir.1993). Petitioner has failed to show either.

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Accordingly, the motion for relief from the judgment is DENIED. The Clerk shall
terminate Docket No. 24.
IT IS SO ORDERED.
DATED: January 18, 2012
SUSAN ILLSTON
United States District Judge

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