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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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY GASTON,
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Petitioner,
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v.
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ANTHONY HEDGEPETH, Warden,
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Respondent.
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No. C 10-4068 LHK (PR)
ORDER DENYING MOTION FOR
RECONSIDERATION
(Docket No. 39)

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

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pursuant to 28 U.S.C. § 2254, challenging two administrative decisions by the California

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Department of Corrections and Rehabilitation (“CDCR”). On November 9, 2011, the Court

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dismissed Claim 1, which challenged a 2005 rules violation report for arson, as procedurally

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defaulted and untimely. On September 7, 2012, the Court dismissed Claim 2, which challenged

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a 2008 rules violation report for indecent exposure, for failure to state a claim.

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On September 26, 2012, Petitioner filed a motion asking the Court to reconsider the

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November 9, 2011 dismissal of Claim 1 under Federal Rule of Civil Procedure 60(b). Rule

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60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one or more of

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the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

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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

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decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the

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judgment; and (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v.

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ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In the present motion, Petitioner claims that he

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is entitled to reconsideration based on Rule 60(b)(1). Specifically, he claims that he was without

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his legal property for at least seven months while the statute of limitations was running.

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Petitioner also argues that he was under psychiatric care during those seven months, and his rules

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violation for arson should have been reduced or dismissed.

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Petitioner’s arguments are unavailing. First, the Court concluded that Claim 1 was

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procedurally defaulted. Petitioner’s motion for reconsideration does not address that conclusion.

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Second, the Court also concluded that the petition was untimely. The Court specifically

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considered Petitioner’s assertions that he was without his legal property and was undergoing

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psychiatric care when the Court determined that Petitioner was not entitled to equitable tolling.

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Finally, Petitioner’s argument that his rules violation for arson should have been reduced or

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dismissed is irrelevant to the Court’s conclusion that Claim 1 was procedurally defaulted and

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untimely.

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Accordingly, Petitioner’s motion for reconsideration is DENIED. No further filings will

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be accepted in this closed case.

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IT IS SO ORDERED.

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11/7/12
DATED: _________________________

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LUCY H. KOH
United States District Judge

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Order Denying Motion for Reconsideration
G:\PRO-SE\SJ.LHK\HC.10\Gaston068recon.wpd

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