Cosme v. USA

Filing 4

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge William Q. Hayes on 11/06/2017.(All non-registered users served via U.S. Mail Service)(ajs)(jrd)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 11 UNITED STATES OF AMERICA, Plaintiff, v. 12 CARLOS COSME, 13 HAYES, Judge: 10 CRIM CASE NO. 10cr3044WQH CIVIL CASE NO. 16cv653WQH CIVIL CASE NO. 16cv2049 ORDER Defendant. 14 The matter before the Court is the motion to reopen and reenter judgment 15 pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6) (ECF No. 2360) 16 filed by Defendant/Petitioner. 17 On January 11, 2017, this Court entered an order denying the motion pursuant 18 to 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel filed by the 19 Defendant/Petitioner. (ECF No. 2333). Defendant moves the Court to reopen his case 20 and to reenter judgment on the grounds that his counsel did not send his a copy of the 21 order denying relief and it recently came to his attention that the motion had been 22 denied. 23 “Rule 60(b)(6) is a catch-all provision that allows a court to vacate a judgment 24 for ‘any other reason justifying relief from the operation of the judgment.’ That rule 25 has been used sparingly as an equitable remedy to prevent manifest injustice.” Lehman 26 v. U.S., 154 F.3d 1010, 1017 (9th Cir. 1998). Relief under Rule 60(b)(6) “is to be 27 utilized only where extraordinary circumstances prevented a party from taking timely 28 action to prevent or correct an erroneous judgment.” Harvest v. Castro, 531 F.3d 737, -1- 1 749 (9th Cir. 2008) (internal quotation marks omitted). The Court concludes that 2 Defendant/Petitioner has moved in a timely manner and set forth good cause to reopen 3 and reenter judgment. 4 IT IS HEREBY ORDERED that the motion to reopen and reenter judgment 5 pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6) (ECF No. 2360) 6 filed by Defendant/Petitioner is granted. 7 IT IS FURTHER HEREBY ORDERED that motion pursuant to 28 U.S.C. § 8 2255 (ECF No. 2301) is denied on the grounds stated in the January 11, 2017 order 9 (ECF No. 2333). As stated in the January 11, 2017 order, a certificate of appealability 10 is denied. The Clerk of the Court shall send a copy of this order and a copy of ECF 11 No. 2333 to the Defendant at the address stated in ECF No. 2360. 12 DATED: November 6, 2017 13 14 WILLIAM Q. HAYES United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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