Mabon v. Harvey

Filing 34

ORDER by Judge Ronald M. Whyte Denying 32 Motion for Reconsideration. (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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TROY DOMINIC MABON, JR.,

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Petitioner,
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v.
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JOHN W. HARVEY,
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Respondent.
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__________________________________ )

No. C 09-2817 RMW (PR)
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

(Docket No. 32)

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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 January 27, 2011, the court granted respondent’s motion to

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dismiss the petition as untimely and entered judgment. On October 23, 2012, the Ninth Circuit

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Court of Appeal denied a certificate of appealability and dismissed petitioner’s appeal. To date

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no mandate has issued. Thus, the court construes petitioner’s motion to recall the mandate as a

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motion for reconsideration. So construed, the motion is DENIED.

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Federal Rule of Civil Procedure 60(b)(6) affords courts the discretion and power “to

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vacate judgments whenever such action is appropriate to accomplish justice.” Phelps v.

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Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009). In applying Rule 60(b)(6) to petitions for

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habeas corpus, the Ninth Circuit has considered the following factors to guide its exercise of its

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Rule 60(b)(6) discretion: (1) a showing of extraordinary circumstances, such as a change in

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Order Denying Motion for Reconsideration
P:\PRO-SE\RMW\HC old\HC.09\Mabon817postjudg.wpd

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intervening law; (2) the petitioner’s exercise of diligence in pursuing the issue during federal

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habeas proceedings; (3) interest in finality; (4) delay between the finality of the judgment and the

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motion for Rule 60(b)(6) relief; (5) degree of connection between the extraordinary circumstance

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and the decision for which reconsideration is sought; and (6) comity. See Phelps, 569 F.3d at

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1135.

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Here, petitioner claims that appellate counsel failed to give petitioner his trial transcripts

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until November 2007. (Mot. at 3.) Notwithstanding the fact that petitioner still had until May 8,

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2008, to file his federal habeas petition, petitioner had the opportunity to proffer this argument in

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his opposition to the motion to dismiss but failed to do so. Petitioner next argues that the

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opinion in Martinez v. Ryan, 132 S. Ct. 1309 (2012), should apply to him. However, the

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Martinez Court dealt with whether ineffective post-conviction counsel in a collateral proceeding

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could constitute cause for a procedural default. Id. at 1315; see also Ha Van Nguyen v. Curry,

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736 F.3d 1287, 1293-95 (9th Cir. 2013) (extending the holding in Martinez to apply to cases

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where the underlying ineffective assistance of counsel is by appellate counsel rather than trial

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counsel). Thus, Martinez does not address the timeliness of a habeas petition.

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Accordingly, petitioner has not shown extraordinary circumstances warranting

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reconsideration, nor has he demonstrated diligence in pursuing this issue when the case was still

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open, or proffered any reason why the court should reconsider the judgment nearly four years

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after it issued. The motion for reconsideration is DENIED. No further filings shall be accepted

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in this closed case.

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This order terminates docket number 32.

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IT IS SO ORDERED.

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DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Denying Motion for Reconsideration
P:\PRO-SE\RMW\HC old\HC.09\Mabon817postjudg.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

TROY D. MABON,

Case Number: CV09-02817 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JOHN W. HARVEY et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on November 12, 2014, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Troy Dominic Mabon V-70737
North Kern State Prison
A3-139L
P.O. Box 5000
Delano, CA 93216
Dated: November 12, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk