Royal v. Martel

Filing 40

ORDER by Judge Ronald M. Whyte Denying 38 Motion to Amend. (jgS, COURT STAFF) (Filed on 11/12/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARTIN D. ROYAL,
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Petitioner,
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vs.
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M. MARTEL, Warden,
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Respondent.
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____________________________________)

No. C 08-5628 RMW (PR)
ORDER DENYING MOTION TO AMEND

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On December 17, 2008, petitioner, a California prisoner proceeding pro se, filed a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On October 5, 2010, the court denied petitioner’s

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petition for writ of habeas corpus, and entered judgment in favor of the respondent. On April 13,

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2012, the Ninth Circuit Court of Appeal denied a certificate of appealability. On April 11, 2014,

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petitioner filed the instant motion to amend his petition.

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It is settled law in this circuit that one cannot use Rule 15 once an action has been

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dismissed and a final judgment entered unless the judgment is set aside under Federal Rules of

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Civil Procedure 59(e) or 60(b). See Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996)

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(“[O]nce judgment has been entered in a case, a motion to amend the complaint can only be

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entertained if the judgment is first reopened under a motion brought under Rule 59 or 60”). This

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rule applies equally to habeas petitions. See Woodford v. Garceau, 538 U.S. 202, 208 (2003)
Order Denying Motion to Amend
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(“The Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that

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they are not inconsistent with the Habeas Corpus Rules.”). Re-opening a case is a high hurdle to

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overcome, as judgment is not properly reopened “absent highly unusual circumstances, unless

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the district court is presented with newly discovered evidence, committed clear error, or if there

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is an intervening change in the controlling law.” Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th

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Cir. 2001).

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Here, the court will not entertain a motion for relief from judgment, as petitioner has

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failed to demonstrate any of the grounds which might warrant such relief. Rather, he simply

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raises new claims of trial error, which would have been apparent to him at the time of his

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conviction. Thus, even if petitioner had filed a proper motion for relief from judgment, such

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relief would not be available.

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Finally, construing this pleading as a new petition for writ of habeas corpus challenging

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the state court judgment under which petitioner is currently serving a prison sentence, the

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petition must be dismissed as successive under 28 U.S.C. § 2244(b)(3)(A), because permission

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for filing has not been obtained from the court of appeal.

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Petitioner’s motion to amend is DENIED. No further filings will be accepted in this
closed case.
IT IS SO ORDERED.

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DATED: _______________
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RONALD M. WHYTE
United States District Judge

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Order Denying Motion to Amend
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*E-FILED - 1/31/11*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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MARTIN D. ROYAL,
Petitioner,

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No. C 08-5628 RMW (PR)
ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS ON
APPEAL

v.
M. MARTEL, Warden,
Respondent.
/

(Docket No. 33)

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On October 5, 2010, the court denied the petition, entered

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judgment in favor of respondent, and declined to issue a certificate of appealability. Petitioner

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has filed a notice of appeal and a motion to waive filing fees on appeal. The court construes

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plaintiff’s motion as an application to proceed IFP on appeal.

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Because the court declined to issue a certificate of appealability in the order denying

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the petition, petitioner’s request to proceed IFP on appeal (docket no. 32) is also DENIED.

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When the court declined to issue a certificate of appealability in the order denying the

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petition, it determined that there were no valid grounds for an appeal. Accordingly, granting

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the petitioner’s application to proceed IFP on appeal would not be appropriate.

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Order Denying Application to Proceed In Forma Pauperis on Appeal
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This order terminates docket no. 32.

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IT IS SO ORDERED.

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DATED:

1/28/11

RONALD M. WHYTE
United States District Judge

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United States District Court
For the Northern District of California

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Order Denying Application to Proceed In Forma Pauperis on Appeal
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