Gaston v. Hedgepeth

Filing 42

ORDER by Judge Lucy H. Koh denying 39 Motion for Reconsideration (Attachments: # 1 cert of service) (mpb, COURT STAFF) (Filed on 11/7/2012)

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1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 ANTHONY GASTON, 12 Petitioner, 13 v. 14 ANTHONY HEDGEPETH, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) No. C 10-4068 LHK (PR) ORDER DENYING MOTION FOR RECONSIDERATION (Docket No. 39) 17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254, challenging two administrative decisions by the California 20 Department of Corrections and Rehabilitation (“CDCR”). On November 9, 2011, the Court 21 dismissed Claim 1, which challenged a 2005 rules violation report for arson, as procedurally 22 defaulted and untimely. On September 7, 2012, the Court dismissed Claim 2, which challenged 23 a 2008 rules violation report for indecent exposure, for failure to state a claim. 24 On September 26, 2012, Petitioner filed a motion asking the Court to reconsider the 25 November 9, 2011 dismissal of Claim 1 under Federal Rule of Civil Procedure 60(b). Rule 26 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one or more of 27 the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly 28 discovered evidence that by due diligence could not have been discovered before the Court’s Order Denying Motion for Reconsideration G:\PRO-SE\SJ.LHK\HC.10\Gaston068recon.wpd 1 decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the 2 judgment; and (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. 3 ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In the present motion, Petitioner claims that he 4 is entitled to reconsideration based on Rule 60(b)(1). Specifically, he claims that he was without 5 his legal property for at least seven months while the statute of limitations was running. 6 Petitioner also argues that he was under psychiatric care during those seven months, and his rules 7 violation for arson should have been reduced or dismissed. 8 Petitioner’s arguments are unavailing. First, the Court concluded that Claim 1 was 9 procedurally defaulted. Petitioner’s motion for reconsideration does not address that conclusion. 10 Second, the Court also concluded that the petition was untimely. The Court specifically 11 considered Petitioner’s assertions that he was without his legal property and was undergoing 12 psychiatric care when the Court determined that Petitioner was not entitled to equitable tolling. 13 Finally, Petitioner’s argument that his rules violation for arson should have been reduced or 14 dismissed is irrelevant to the Court’s conclusion that Claim 1 was procedurally defaulted and 15 untimely. 16 Accordingly, Petitioner’s motion for reconsideration is DENIED. No further filings will 17 be accepted in this closed case. 18 IT IS SO ORDERED. 19 11/7/12 DATED: _________________________ _________________________ LUCY H. KOH United States District Judge 20 21 22 23 24 25 26 27 28 Order Denying Motion for Reconsideration G:\PRO-SE\SJ.LHK\HC.10\Gaston068recon.wpd 2

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