Corlley v. Unnamed Respondents

Filing 23

ORDER Denying 22 Motion for Order Under Rule 60(B). Signed by Judge Janis L. Sammartino on 4/16/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DERRICK CORLLEY,

Case No.: 15-CV-1361-JLS (WVG)
Petitioner,

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v.

ORDER DENYING MOTION FOR
ORDER UNDER RULE 60(B)

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UNNAMED RESPONDENTS,

(ECF No. 7)

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Respondents.

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Presently before the Court is a Motion filed by Petitioner, (“MTN,” ECF No. 22).

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Petitioner’s Motion is titled “Order for a 60(b) Motion” and the Court construes it as a

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Motion pursuant to Federal Rule of Civil Procedure 60(b).

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BACKGROUND

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In June 2015, Petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C.

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§ 2254. On July 17, 2015, this Court dismissed the petition without prejudice because

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Petitioner failed to name a proper respondent. (ECF No. 3.) The Court stated “in order to

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have this case reopened, Petitioner must file a First Amended Petition, no later than

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September 1, 2015, which cures the pleading deficiency outlined in this Order.” (Id. at

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3.)1 Nothing was filed by this date. In October 2015, Petitioner filed a notice of change of

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address. (ECF No. 4.)

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In May 2016, Petitioner filed another petition pursuant to § 2254 in another case,

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16cv1301 WHG (JLB). This petition raised three of the claims in his original petition and

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five additional claims. (16cv1301, ECF No. 1.) In July 2016, Judge Hayes directed the

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Clerk of Court to file Petitioner’s second petition (in 16cv1301) as a Motion to Reopen and

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Amend the Petition in the present case (15cv1361). Petitioner was directed to pursue all

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challenges to his conviction in the present case.

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While these events were occurring in that case, in February 2016, Petitioner wrote a

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letter to this Court notifying the Court he was exhausting additional claims in state court.2

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In June 2016, Petitioner submitted another letter explaining he intended the petition in

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16cv1301 to be consolidated with the petition he had filed in the present case. (ECF No.

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3.) As mentioned above, in July 2016, the Petition in 16cv1301 was filed in the present

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case as a Motion to Reopen and Amend the Petition. (ECF No. 7.) The Court analyzed

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the Petition and Motion and determined “even generously applying AEDPA’s statutory

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tolling for pending state habeas review to Petitioner’s case, Petitioner’s second petition

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filed with this Court falls outside of AEDPA’s one year statute of limitations.” (ECF No.

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14.) The Court denied the Motion. Petitioner then appealed and the Ninth Circuit denied

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him a certificate of appealability. (ECF No. 19.) Petitioner filed the present Motion.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 60 provides, in pertinent part: “On motion and just

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terms, the court may relieve a party or its legal representative from a final judgment, order,

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or proceeding” for various reasons: (1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the

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judgment has been satisfied, released, or discharged, or (6) any other reason that justifies

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Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page.
This letter was not electronically docketed until June 28, 2016.
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relief. Fed. R. Civ. P. 60(b). Such a motion must be filed within a “reasonable time.” If

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filed under sections (1), (2), and (3), the motion must be filed “no more than a year after

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the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c).

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ANALYSIS
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Rule 60(b)(1), (2), or (3)

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Petitioner brings this Motion under Rule 60(b) without specifying a specific ground.

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(See MTN 1.) To the extent he bases his Motion on subsections (1), (2), or (3), Petitioner’s

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motion is untimely. The Court issued its order denying the Motion to Reopen or Amend

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the Petition on January 5, 2017 and Petitioner filed the present Motion on February 22,

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2018. This is more than a year later and is thus untimely.

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II.

Rule 60(b)(6)

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Although Petitioner does not mention Rule 60(b)(6) in his Motion, the Court

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considers Petitioner’s Motion as brought under this section, analyzing whether there is “any

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other reason” that justifies providing Petitioner relief from the final judgment.3 Petitioner

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also does not mention that he is requesting reconsideration, but he makes arguments that

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he has made in prior briefing.

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As a preliminary matter, a motion under this section must be filed in a “reasonable

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time.” Petitioner has not offered a sufficient explanation for the delay in filing the Motion,

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especially considering he is not alleging there is any recent information or law that justifies

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relief.

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unreasonable. See Adams v. Hedgpeth, No. LA CV 11-04330-CBF-FFM, 2014 WL

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1795167, at *2 (C.D. Cal. Apr. 9, 2014) (“District courts have found a delay of even 14 or

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15 months before seeking relief from a judgment dismissing a habeas petition was

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unreasonable.”); Rodriquez–Villareal v. United States, Nos. 06-CV-223 H, 99-CF-1414 H,

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2007 WL 2410058, at *3 (S.D. Cal. Aug. 2007) (finding petitioner’s 14-month delay before

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filing a Rule 60(b)(6) motion untimely). Nevertheless, the Court will consider the merits

The Court finds the unexplained and unjustified thirteen-month delay to be

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There is no indication that Petitioner is requesting relief under Rule 60(b)(4) or (5).
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of the Motion.

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“A party moving for relief under Rule 60(b)(6) ‘must demonstrate both injury and

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circumstances beyond his control that prevented him from proceeding with the action in a

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proper fashion.’” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting Latshaw

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v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The Ninth Circuit

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has cautioned that Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances prevented

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a party from taking timely action to prevent or correct an erroneous judgment.” Id. (quoting

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Latshaw, 452 F.3d at 1103).

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Petitioner’s Motion is lengthy, repetitive, and in some places illegible. In sum,

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Petitioner makes two main arguments. First, he argues he did not receive the Court’s July

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17, 2015 order, which dismissed his case and ordered him to file an amended petition.

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(MTN 4, 7.) Without providing any specific reasoning, he argues this entitles him to

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equitable tolling. (Id. at 5.) Second, he argues his prior filing was not a “Motion to Reopen

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the Case” but was an inquiry into why his case was closed. (Id. at 6.)

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I.

Receipt of the Court’s Order and Equitable Tolling

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Petitioner argues he did not receive the Court’s July 17, 2015 order. Petitioner

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previously made this same argument and argued this shows extraordinary circumstances

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beyond his control that justify equitable tolling. (ECF No. 13, at 9, 11). In this Motion,

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Petitioner attaches a printout of mail card which lists his incoming mail. He argues this is

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proof that he never received the order. (MTN 27.) The last entry on the mail card is

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blacked out by a marker. The date of the last entry is also blacked out, but the entry before

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it is dated June 23, 2015. It is possible that this blacked out entry shows that Petitioner

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actually did receive the July 17, 2015 order in the mail. In any event, Petitioner already

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made this argument, and the Court finds no basis to reconsider its prior order and no basis

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to grant Petitioner relief from the final judgment.

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II.

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Prior Motion
Petitioner argues his “letter to the Court was not a Motion to Reopen the Case” but
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was an inquiry into why his case was closed. (MTN 6.) It appears Petitioner is confused

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by the docket. When Petitioner filed a petition in the second case in front of Judge Hayes,

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16cv1301, Judge Hayes directed the clerk to file that petition as a Motion to Reopen and

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Amend in the present case, 15cv1361. (See 16cv1301, ECF No. 9.) Petitioner did write

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the Court a letter in this case filed July 18, 2016 where he inquired into why his case was

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closed. (ECF No. 10.) This letter was not deemed a Motion to Reopen the Case. Therefore,

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Petitioner is incorrect and has not submitted a basis for reconsideration or relief on this

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ground.

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CONCLUSION

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In short, any motion for relief under Rule 60(b)(1), (b)(2), or (b)(3) would be time-

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barred, and even under the more flexible Rule 60(b)(6), the motion is unreasonably

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delayed. Petitioner has not shown extraordinary circumstances that prevented him from

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taking timely action, and the proposed motion lacks any basis for reconsideration.

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IT IS SO ORDERED.
Dated: April 16, 2018

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