Diaz v. Cate
Filing
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ORDER denying 20 Amended Motion for Relief from Final Judgment. Signed by Judge M. James Lorenz on 9/15/2015. Signed by Judge M. James Lorenz on 9/15/2015. (sjt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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THOMAS ANTHONY DIAZ,
Case No.: 13cv1438 L (MDD)
Petitioner,
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ORDER DENYING AMENDED
MOTION FOR RELIEF FROM
FINAL JUDGMENT [ECF No. 20]
v.
JEFFERY BEARD,
Respondent.
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On August 13, 2015, petitioner filed an amended motion for relief from a final
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judgment under Federal Rule of Civil Procedure 60, that dismissed as untimely his
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petition for writ of habeas corpus under 28 U.S.C. §2254. Although given notice of the
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motion, respondent has not filed an opposition to the motion. Having reviewed the
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matter, the Court will deny the current motion for the reasons set forth below.
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I.
Procedural Background
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Petitioner was convicted of six counts and sentenced to a 16- year term of
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incarceration. In the state appellate court, petitioner raised two claims on direct appeal.
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On August 29, 2011, the appeal was denied and the judgment affirmed in its entirety.
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Petitioner further appealed the same claims to the California Supreme Court. On
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November 16, 2011, the California Supreme court denied the appeal without citation. On
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February 14, 2012, petitioner=s conviction became final. On June 20, 2013, petitioner
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filed a petition for writ of habeas corpus in this Court, which raised the same claims that
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were presented on direct appeal in the state court. Respondent filed a motion to dismiss
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the petition contending the petition was untimely under AEDPA. On December 27, 2013,
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the magistrate judge entered a Report and Recommendation (“Report”) which found
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AEDPA=s limitation period expired on February 14, 2013, and therefore, the petition filed
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June 20, 2013 was untimely and would only be considered timely if the limitation period
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was tolled under statutory or equitable tolling principles. Petitioner filed objections to the
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Report. On January 21, 2014, the Court adopted the Report and overruled petitioner’s
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objections. On January 23, 2014, the Court denied petitioner a certificate of appealability.
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Petitioner filed a notice of appeal to the Ninth Circuit Court of Appeals and requested a
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certificate of appealability which was denied on September 29, 2014.
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II.
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Factual Background
The issue of the timeliness of petitioner’s petition revolves around his counsel’s
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failure to timely file the petition. Counsel states that he prepared a petition for writ of
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habeas corpus for filing and appeared in person on August 29, 2012, at the office of the
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Clerk of the Court for the Southern District of California. Counsel was instructed to file
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the petition electronically. Interestingly counsel does not explicitly acknowledge that the
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petition was returned to him and was not maintained at the Clerk’s Office. Counsel
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provided the filing instructions to a member of his staff. The staff member paid the filing
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fee online and received a filing fee receipt from the Clerk’s Office but no other indication
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that the petition had been electronically filed. Nevertheless, at that point counsel’s staff
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member and counsel believed that the petition and accompanying memorandum were
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filed. Nearly ten months later, in mid-June 2013, counsel checked the court’s electronic
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docket and could not locate the case because the petition had not been electronically
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filed. On June 20, 2013, the petition was electronically filed and a case number assigned.
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Petitioner argued in response to respondent’s motion to dismiss that the petition
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should be deemed timely based on either the doctrine of constructive filing or equitable
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tolling. The magistrate judge disagreed as did the undersigned.
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III.
Legal Standard
As noted above, petitioner seeks to have the judgment vacated under Federal Rule
of Civil Procedure 60(a) and (b)(1) and (6).
Rule 60(a) provides in relevant part that “[T]the court may correct a clerical
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mistake or a mistake arising from oversight or omission whenever one is found in a
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judgment, order, or other part of the record.” “In determining whether a mistake may be
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corrected under Rule 60(a), ‘our circuit focuses on what the court originally intended to
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do.’” Tattersalls, Ltd. v. De Haven, 745 F.3d 1294, 1298 (9th Cir. 2014)(quoting Blanton
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v. Anzalone, 813 F.2d 1574, 1577 (9th Cir. 1987)). Thus, “[t]he basic distinction between
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‘clerical mistakes' and mistakes that cannot be corrected pursuant to Rule 60(a) is that the
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former consist of ‘blunders in execution’ whereas the latter consist of instances where the
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court changes its mind.” Blanton, 813 F.2d at 1577 n. 2. “Substantive changes of mind
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by a court cannot be effected through Rule 60(a) . . . [a] court's failure to memorialize
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part of its decision . . . is a clerical error.” Buchanan v. United States, 755 F.Supp. 319,
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324 (D. Or.1990); see also Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir.
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1987).
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Rule 60(b) provides for extraordinary relief and may be invoked only upon a
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showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972 F.2d 1038,
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1044 (9th Cir. 1994) (citing Ben Sager Chem. Int'l v. E. Targosz & Co., 560 F.2d 805,
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809 (7th Cir. 1977)). Under Rule 60(b), the court may grant relief based on: (1) mistake,
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inadvertence, surprise or excusable neglect; or (6) any other reason justifying relief. FED.
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R. CIV. P. 60(b).
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Rule 60(b)(6) is a “catchall provision” that applies only when the reason for
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granting relief is not covered by any of the other reasons set forth in Rule 60. United
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States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005), overruled on other grounds by
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United States v. Washington, 593 F.3d 790 (9th Cir. 2010). “It has been used sparingly as
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an equitable remedy to prevent manifest injustice and is to be utilized only where
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extraordinary circumstances prevented a party from taking timely action to prevent or
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correct an erroneous judgment.” Id. (internal quotation marks omitted). Thus, to reopen a
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case under Rule 60(b)(6), a party must establish “both injury and circumstances beyond
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his control that prevented him from proceeding ... in a proper fashion.” Id. (internal
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quotation marks omitted. See also Lafarge Conseils Et Etudes, S.A. v. Kaiser Cement &
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Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986) (“A motion brought under [Rule]
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60(b)(6) must be based on grounds other than those listed in the preceding clauses.”).
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III.
Discussion
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A.
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Petitioner failed to properly electronically file his petition and further failed to
Clerical Mistakes; Oversights and Omissions
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monitor the status of the purported filing for many months. Counsel contends that it was
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the failure of the Clerk’s Office to determine if petitioner filed his petition citing the
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Electronic Case Filing Administrative Policies and Procedures Manual. Section 2(n)(4)1
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states in pertinent part: “If the Clerk’s Office discovers filing or docketing errors, the filer
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will be advised of what further action, if any, is required to address the error.” By
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petitioner’s account, the Clerk’s Office should have discerned that petitioner intended to
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file a habeas petition even though none was filed. The Clerk’s Office is not expected to
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intuit counsel’s intention.
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Petitioner also notes that under the Policies and Procedures Manual, Section 2(m),
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“[a] registered user whose filing is made untimely as a result of a technical failure may
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seek appropriate relief from the court.” However, petitioner has pointed to no technical
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failure with the electronic filing other than the filing was not made by him or his staff.
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There was no clerical mistake made by the Clerk’s Office.
“A district court judge may properly invoke Rule 60(a) to make a judgment reflect
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the actual intentions and necessary implications of the court's decision.” Robi v. Five
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Platters, Inc., 918 F.2d 1439, 1445 (9th Cir. 1990) (citing Jones & Guerrero Co. v.
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Petitioner incorrectly cites Section 1(n)(4) and 1(m) from the Policies and
Procedures Manual rather than Section 2.
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Sealift Pacific, 650 F.2d 1072, 1074 (9th Cir.1981)). In the present case, the Court
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intended its decision adopting the Report and dismissing petitioner’s petition for
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untimeliness under AEDPA. Accordingly there is no basis for relief under Rule 60(a).
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B.
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Petitioner argues that relief should be granted under Rule 60(b)(1) because of
Rule 60(b)(1): Mistake or Excusable Neglect
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mistake, either his or the Clerk’s Office, or excusable neglect. “Excusable neglect is an
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equitable concept that takes account of factors such as ‘prejudice, the length of the delay
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and impact on judicial proceedings, the reason for the delay, including whether it was
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within the reasonable control of the movant, and whether the movant acted in good
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faith.’” Franchise Holding II, LLC. v. Huntington Restaurants Grp., Inc., 375 F.3d 922,
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927 (9th Cir. 2004) (affirming denial of Rule 60(b)(1) motion to set aside default
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judgment); see also Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir.
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1992) (articulating that “[t]o qualify for equitable relief under Rule 60(b)(1), the movant
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must demonstrate ... excusable neglect” and noting “[n]either ignorance nor carelessness
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on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)”)
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(citation and internal quotation marks omitted) (emphasis added).
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In this case the length of delay was significant, almost 10 months, before counsel
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even inquired about petitioner’s petition. Counsel did not track the petition but rather did
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nothing to confirm that the petition was actually filed. Although not appearing malicious,
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counsel’s lack of attention suggests an absence of good faith. The reason for delay,
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counsel’s inattentiveness, was solely in petitioner’s counsel’s hands. Although some
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prejudice will manifest, prejudice is not the singular factor to consider. All the other
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factors weigh heavily in favor of finding the neglect was not excusable under the law.
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C.
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As noted above, the “catchall provision” is sparingly used and only where
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extraordinary circumstances prevented a party from taking timely action to prevent or
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correct an erroneous judgment.” Washington, 394 F.3d at 1157. Here, petitioner must
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establish “both injury and circumstances beyond his control that prevented him from
Rule 60(b)(6)
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proceeding . . . in a proper fashion.” Id.
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Petitioner has not established exceptional circumstances that warrant relief under
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Rule 60(b)(6). Counsel failed to monitor the status of his purported filing for almost ten
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months. Nor does counsel specify any circumstances, much less extraordinary
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circumstances, that were beyond his control and prevented him from determining whether
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the petition was filed or not in a timely manner. Accordingly, petitioner is not entitled to
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relief under Rule 60(b)(6).
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Conclusion
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Based on the foregoing, petitioner’s motion for relief from final judgment is
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DENIED.
IT IS SO ORDERED.
Dated: September 15, 2015
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