Amparo v. Adams et al
Filing
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ORDER DENYING PETITIONER'S REQUEST FOR EXTENSION OF TIME; DENYING PETITIONER'S MOTION FOR TRAVERSE. Signed by Judge Maxine M. Chesney on September 12, 2012. (mmclc1, COURT STAFF) (Filed on 9/12/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARCOS AMPARO,
No. C 09-0801 MMC (PR)
For the Northern District of California
United States District Court
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Petitioner,
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ORDER DENYING PETITIONER’S
REQUEST FOR EXTENSION OF TIME;
DENYING PETITIONER’S MOTION FOR
TRAVERSE
v.
MIKE MCDONALD, Warden,
Respondent.
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By order filed March 30, 2012, the Court denied the above-titled petition for a writ of
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habeas corpus, finding petitioner Marcos Amparo had failed to show he was entitled to
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relief on any of the four claims alleged therein. In its order, the Court noted that petitioner
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had not filed a traverse. Now before the Court is petitioner’s untitled request, filed June 15,
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2012, for an extension of time to file a traverse, and petitioner’s “Motion for Traverse,” filed
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September 4, 2012, to which he has attached a document the Court construes as his
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proposed traverse. For the following reasons, both the request and the motion will be
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denied.
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Petitioner filed the instant petition on February 24, 2009, and, on November 12,
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2009, respondent filed an answer to the petition. Thereafter, by order filed January 26,
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2011, the Court set a March 28, 2011 deadline for petitioner to file his traverse. On March
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15, 2011, petitioner filed a motion seeking an extension of time, which motion the Court
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granted by order filed April 29, 2011; specifically, the Court extended the deadline to June
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1, 2011. On July 5, 2011, petitioner filed a second motion for an extension of time, which
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motion the Court granted by order filed July 8, 2011; specifically, the Court extended the
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deadline to August 31, 2011. Petitioner, however, neither filed a traverse nor requested a
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further extension of time by August 31, 2011. Thereafter, on March 30, 2012, the Court, as
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noted above, denied the petition; on April 2, 2012, the Clerk entered judgment on the
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Court’s order of March 30, 2012.
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Petitioner’s pending request for an extension of time to file a traverse was filed more
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than ten months after the deadline to file a traverse had passed and two months after
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judgment in the above-titled action was entered. Under such circumstances, the Court
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construes petitioner’s request as a motion for an order setting aside the judgment for the
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purpose of the Court’s considering an untimely traverse, see Fed. R. Civ. P. 60(b)(1), and
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petitioner’s later-filed motion as a renewal thereof, see id. So construed, the request and
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motion will be denied, for the reason that petitioner fails to show his failure to file, on or
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before August 31, 2011, either a traverse or a request for a further extension of time was
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on account of any “mistake, inadvertence, surprise, or excusable neglect.” See id.
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Further, even assuming petitioner has shown cognizable grounds exist to set aside
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the judgment and to consider the proposed traverse filed September 4, 2012, see, e.g.,
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Bateman v. United States Postal Service, 231 F.3d 1220 (9th Cir. 2000), the Court finds
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consideration of said traverse does not change the Court’s determination as set forth in the
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Court’s order of March 30, 2012.
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Accordingly, petitioner’s request for an extension of time and his motion for traverse
are hereby DENIED.
Lastly, to the extent petitioner may seek to appeal the instant order, a certificate of
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appealability is hereby DENIED, for the reason petitioner has not made a “substantial
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showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
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IT IS SO ORDERED.
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Dated: September 12, 2012
MAXINE M. CHESNEY
United States District Judge
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