Austin v. Grounds

Filing 29

ORDER denying Petitioner's 27 Motion for Relief from Judgment. Signed by Judge Cynthia Bashant on 3/5/2018. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE V. AUSTIN,
Petitioner,

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Case No. 15-cv-00309-BAS-BLM
ORDER DENYING PETITIONER’S
MOTION FOR RELIEF FROM
JUDGMENT

v.
R. GROUNDS, Warden,
Respondent.

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On February 12, 2015, Petitioner George V. Austin, a state prisoner proceeding pro

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se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254. (ECF No. 1.) On March 23, 2016, the Court adopted Magistrate Judge Barbara Lynn

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Major’s January 26, 2016 Report and Recommendation (“R&R”) and denied the petition

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for writ of habeas corpus. (ECF No. 16.)

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Presently before the Court is Petitioner’s Motion for Relief from Judgment. (ECF

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No. 27.) This is Petitioner’s second motion for relief from judgment. Petitioner first filed

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this motion on April 26, 2016. (ECF No. 21.) The Court terminated Petitioner’s motion

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due to its lack of jurisdiction because Petitioner appealed the final judgment to the Ninth

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Circuit, divesting this Court’s jurisdiction. (ECF No. 22); see also Laurino v. Syringa Gen.
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Hosp., 279 F.3d 750, 755 (9th Cir. 2002) (“It is black letter law that, once a notice of appeal

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is filed from a final judgment, the district court is divested of jurisdiction.”); Fed. R. App.

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P. 4(a)(4). On November 7, 2016, the Ninth Circuit declined to issue a certificate of

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appealability, and denied as moot any pending motions. (ECF No. 23.)

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On February 7, 2018, Petitioner filed the present motion (ECF No. 27), along with

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an additional appeal to the Ninth Circuit, which was subsequently denied as untimely (ECF

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Nos. 24, 28). For the following reasons, the Court DENIES Petitioner’s Motion for Relief

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from Judgment.

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I.

Standard

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Under Federal Rule of Civil Procedure 60(b)(1), a court may grant relief to a party

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from a judgment due to “mistake, inadvertence, surprise, or excusable neglect.” Excusable

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neglect “encompasses situations in which the failure to comply with a filing deadline is

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attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd., 507 U.S.

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380, 394 (1993); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381-82 (9th

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Cir. 1997). “A motion under Rule 60(b) must be made within a reasonable time—and for

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reasons under [Rule 60(b)](1) . . . no more than a year after the entry of the judgment or

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order . . . .” Fed. R. Civ. P. 60(c)(1).

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Additionally, Rule 60(b)(6) allows a court to relieve a party from a final judgment

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or order for any reason that justifies relief. “A party moving for relief under Rule 60(b)(6)

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‘must demonstrate both injury and circumstances beyond his control that prevented him

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from proceeding with the action in a proper fashion.’” Harvest v. Castro, 531 F.3d 737,

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749 (9th Cir. 2008) (quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103

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(9th Cir. 2006)). The Ninth Circuit has cautioned that Rule 60(b)(6) is to be “used sparingly

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as 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. (quoting Latshaw, 452 F.3d at 1103).

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II.

Analysis

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Petitioner argues that he should receive relief from the Court’s previous Order and

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entry of judgment against him because he was unable to file objections to the R&R, which

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recommended denying his petition. Petitioner seeks relief based on excusable neglect

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pursuant to Rule 60(b)(1), and states that he failed to file timely objections because, in

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early 2016, he did not receive a copy of the R&R until after the deadline for his objections.

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(See ECF No. 27 at 2, 5 (detailing that Petitioner received the R&R, which provided the

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February 26, 2016 deadline for his objections, on March 14, 2016).) Proceeding without

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receiving any objections from either party, this Court approved and adopted the R&R and

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denied Petitioner’s petition for writ of habeas corpus on March 23, 2016. (ECF No. 22.)

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Along with the current motion, Petitioner now provides copies of his mail log to show that

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he did not receive any mail from the Court during the first couple months of 2016. (ECF

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No. 27 at Ex. B (showing, for 2016, Petitioner first received mail from the Clerk’s office

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on March 14, 2016).)

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The Court finds Petitioner’s evidence compelling, but the Court must assess whether

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the motion for relief is timely. Because Petitioner argues excusable neglect under Rule

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60(b)(1), Petitioner has one year to bring his motion. Fed. R. Civ. Pro. 60(c)(1). Final

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judgment was entered against Petitioner almost two years ago on March 23, 2016. (ECF

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No. 17.) Though Petitioner originally filed a motion for relief from judgment a month after

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this date, the motion was terminated due to the pending Ninth Circuit appeal. The Ninth

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Circuit ruled on the appeal on November 7, 2016, which is over fifteen months before

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Petitioner filed the present motion. Thus, even if the Court could apply equitable tolling

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for Rule 60(b), over a year has lapsed between the time this Court could have had

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jurisdiction and Petitioner’s filing of this Motion. Therefore, the Court finds that

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Petitioner’s motion for relief from judgment is untimely under Rule 60(c)(1).

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Moreover, the Court does not find that applying Rule 60(b)(6) is appropriate here.

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Petitioner does not argue specifically for the Court to apply Rule 60(b)(6), but he does

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make general arguments of equity and fairness. (Id. at 5.) The Court finds that the
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extraordinary circumstances warranting relief under Rule 60(b)(6) are not present here.

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Petitioner is not at risk of any injustice because vacating the previous judgment and

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allowing Petitioner to file objections would not change the outcome of this case. Despite a

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lack of objections, at the time of its Order, the Court conducted its own review of Judge

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Major’s fifty-nine page R&R, and determined that Judge Major’s reasoning was sound.

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(ECF No. 16 at 2 (“Having nonetheless conducted a de novo review of the habeas petition,

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Respondent’s answer, and the R&R, the Court concludes that Judge Major’s reasoning is

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sound.”).) Thus, even if the Court permitted Petitioner to file his objections, the Court

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would conduct a similar de novo review, and approve and adopt the magistrate judge’s

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recommendation to dismiss the petition for habeas corpus.

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III.

Conclusion
For the foregoing reasons, the Court DENIES Petitioner’s Motion for Relief from

Judgment.
IT IS SO ORDERED.

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DATED: March 5, 2018

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