Amparo v. Adams et al

Filing 27

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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/

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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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