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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,
v.

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CARLOS COSME,

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HAYES, Judge:

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CRIM CASE NO. 10cr3044WQH
CIVIL CASE NO. 16cv653WQH
CIVIL CASE NO. 16cv2049
ORDER

Defendant.

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The matter before the Court is the motion to reopen and reenter judgment

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pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6) (ECF No. 2360)

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filed by Defendant/Petitioner.

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On January 11, 2017, this Court entered an order denying the motion pursuant

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to 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel filed by the

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Defendant/Petitioner. (ECF No. 2333). Defendant moves the Court to reopen his case

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and to reenter judgment on the grounds that his counsel did not send his a copy of the

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order denying relief and it recently came to his attention that the motion had been

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denied.

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“Rule 60(b)(6) is a catch-all provision that allows a court to vacate a judgment

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for ‘any other reason justifying relief from the operation of the judgment.’ That rule

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has been used sparingly as an equitable remedy to prevent manifest injustice.” Lehman

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v. U.S., 154 F.3d 1010, 1017 (9th Cir. 1998). Relief under Rule 60(b)(6) “is to be

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utilized only where extraordinary circumstances prevented a party from taking timely

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action to prevent or correct an erroneous judgment.” Harvest v. Castro, 531 F.3d 737,
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749 (9th Cir. 2008) (internal quotation marks omitted). The Court concludes that

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Defendant/Petitioner has moved in a timely manner and set forth good cause to reopen

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and reenter judgment.

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IT IS HEREBY ORDERED that the motion to reopen and reenter judgment

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pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6) (ECF No. 2360)

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filed by Defendant/Petitioner is granted.

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IT IS FURTHER HEREBY ORDERED that motion pursuant to 28 U.S.C. §

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2255 (ECF No. 2301) is denied on the grounds stated in the January 11, 2017 order

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(ECF No. 2333). As stated in the January 11, 2017 order, a certificate of appealability

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is denied. The Clerk of the Court shall send a copy of this order and a copy of ECF

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No. 2333 to the Defendant at the address stated in ECF No. 2360.

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DATED: November 6, 2017

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WILLIAM Q. HAYES
United States District Judge

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