Bunn v. Hedgpeth

Filing 39

ORDER DENYING PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT by Judge Phyllis J. Hamilton denying 38 Motion to Vacate (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 10/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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BILL BUNN,
Petitioner,

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vs.

ORDER DENYING
PETITIONER’S MOTION FOR
RELIEF FROM JUDGMENT

WARDEN SALINAS VALLEY STATE
PRISON,

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For the Northern District of California

United States District Court

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No. C 09-0251 PJH (PR)

Respondent.
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This habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254, was

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closed when the court granted respondent’s motion to dismiss the petition as being

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untimely. Petitioner has now filed a motion for relief from judgment pursuant to Fed. R. Civ.

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P. 60(b).

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Rule 60(b) lists six grounds for relief from a judgment. Such a motion must be made

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within a "reasonable time," and as to grounds for relief (1) - (3), no later than one year after

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the judgment was entered. See Fed. R. Civ. P. 60(b). A Rule 60(b) motion does not affect

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the finality of a judgment or suspend its operation, see id.; therefore, a party is not relieved

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of its obligation to comply with the court's orders simply by filing a Rule 60(b) motion. See

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Hook v. Arizona Dep't of Corrections, 107 F.3d 1397, 1404 (9th Cir. 1997).

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Rule 60(b) provides for reconsideration where one or more of the following is shown:

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(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence

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which by due diligence could not have been discovered before the court's decision; (3)

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fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied;

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(6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc.,

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5 F.3d 1255, 1263 (9th Cir.1993). Rule 60(b) provides a mechanism for parties to seek

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relief from a judgment when "it is no longer equitable that the judgment should have

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prospective application," or when there is any other reason justifying relief from judgment.

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Jeff D. v. Kempthorne, 365 F.3d 844, 853-54 (9th Cir. 2004) (quoting Fed. R. Civ. P. 60(b)).

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Rule 60(b) is not intended to remedy the effects of a deliberate and independent litigation

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decision that a party later comes to regret through second thoughts or subsequently-gained

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knowledge. Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1099 (9th Cir. 2006)

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(denying reconsideration to a party who had settled and then discovered that her attorney

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had made legal errors in advising her to settle).

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In the opposition to the motion to dismiss, petitioner conceded that his habeas
petition was untimely but argued that the petition was timely in light of Martinez v. Ryan,

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For the Northern District of California

United States District Court

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566 U.S. —, 132 S. Ct. 1309 (2012), and its ruling on procedural default. This court still

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analyzed the timeliness issue and granted the motion to dismiss noting that Martinez v.

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Ryan was not applicable to this case. In this Rule 60(b) motion, petitioner now argues for

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the first time that his petition was timely based on statutory tolling while several of his state

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petitions were pending.

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Even assuming that petitioner was entitled to tolling for all of his state habeas

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petitions, the federal petition would still be untimely. As stated in the court’s order

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dismissing the case, the statute of limitations expired on September 19, 2007. Petitioner

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did not file his first state petition until September 5, 2007, just two weeks prior to the

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expiration of the statue of limitations. His final state petition was denied by the California

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Supreme Court on December 17, 2008, and he filed this federal petition on January 14,

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2009. If petitioner were entitled to tolling for all of his state petitions, he would still needed

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to have filed the federal petition within two weeks from December 17, 2008. However, the

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federal petition was not filed until nearly a month later so the petition would still be untimely

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by nearly two weeks.

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Respondent and this court noted that statutory tolling was unavailable for several of

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the state petitions as they were not filed in the next higher court and tolling continues only

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through “one full round” of state habeas petitions. See Carey v. Saffold, 536 U.S. 214, 2222

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23 (2002); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008); Biggs v. Duncan, 339 F.3d

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1045, 1048 (9th Cir. 2003). Statutory tolling does not apply where a petitioner files a

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subsequent petition in the same court, unless the subsequent petition constitutes an

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attempt to correct deficiencies in the previous petition. See Stancle v. Clay, 692 F.3d 948,

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953 (9th Cir. 2012). Petitioner chose not to address respondent’s argument in his

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opposition but now for the first time argues that several of his state petitions were filed in an

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attempt to correct deficiencies of prior petitions. Other than presenting this conlcusory

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statement, he fails to provide copies of these state petitions in support or provide any more

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detail. Regardless, as noted above this would still not overcome the time between the
denial by the California Supreme Court and the filing of the federal petition, as that period

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For the Northern District of California

United States District Court

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of time is not entitled to tolling as there was no petition pending.

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CONCLUSION

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Petitioner’s motion for relief from judgment (Docket No. 38) is DENIED.

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IT IS SO ORDERED.

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Dated: October 15, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.09\Bunn0251.60b.wpd

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