Perry Lee Oakley v. Debbie Asuncion ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PERRY LEE OAKLEY, Case No. 2:16-05986 R (ADS) 12 Petitioner, 13 v. ORDER ACCEPTING REPORT AND RECOMMENDATION OF 14 DEBBIE ASUNCION, Warden, UNITED STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition 18 for Writ of Habeas Corpus [Dkt. No. 26], all the records and files herein, along with the 19 Report and Recommendation dated July 30, 2019 of the assigned United States 20 Magistrate Judge [Dkt. No. 38], and Petitioner’s Motion for Relief from Order (hereafter 21 referred to as “Objections”) constructively filed September 16, 2019 [Dkt. No. 41]. 1 The 22 23 1 The Court construes Petitioner’s Motion for Relief from Order [Dkt. No. 41], as his objections to the Report and Recommendation. 24 1 Court has engaged in a de novo review of those portions of the Report and 2 Recommendation to which objections have been made. 3 In his Objections, Petitioner concedes that habeas relief is not warranted under 4 Ground Three of the First Amended Petition. [Dkt. No. 41, p. 4]. Petitioner states no 5 objection to that portion of the Report and Recommendation. [Id.]. However, 6 Petitioner also moves the court to reinstate two grounds that Petitioner previously 7 voluntarily withdrew, specifically Grounds One and Two. [Dkt. No. 41]. 8 Petitioner fails to establish adequate grounds for this court to reinstate Grounds 9 One and Two. On his own accord, upon receipt of the Respondent’s Return to the First 10 Amended Petition, Petitioner voluntarily withdrew Grounds One and Two. [Dkt. 11 No. 36]. Now, citing Federal Rule of Civil Procedure 60(b)(1), he asks the Court to 12 reinstate them, “as a result of Petitioner’s [] neglect, mistake, [and] inadvertence,” 13 because “as a lay person he couldn’t discern the connection between SB 1437 changes in 14 Penal Code § 188, and his federal claims of insufficiency of evidence of implied malice.” 15 [Dkt. No. 41, p. 2–3]. However, Rule 60 applies to final judgments, orders, and 16 proceedings of the court, and is inapplicable to Petitioner’s voluntary decisions. In 17 short, Petitioner asks the Court to remedy the effects of a litigation decision that he now 18 regrets. Even were Rule 60 to apply, Petitioner’s regret alone is insufficient. See 19 Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006) (“Rule 60(b)(1) 20 is not intended to remedy the effects of a litigation decision that a party later comes to 21 regret.”). 22 Furthermore, this case was filed three years ago in August 2016. The First 23 Amended Habeas Petition was filed in December of 2017. This case is aged and ready 24 for decision. Nevertheless, Petitioner now asks the Court to stay the case because an 1 || appeal is pending in the California Court of Appeal. [Dkt. No. 41, p. 2]. Petitioner, 2 || therefore, admits that he has not fully exhausted all of his claims in the state courts, 3 || which is a prerequisite to federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). For all of 4 || these reasons, the court declines to exercise its discretion to reinstate Grounds One and 5 || Two. 6 Accordingly, IT IS HEREBY ORDERED: 7 1. The United States Magistrate Judge’s Report and Recommendation, [Dkt. 8 No. 38], is accepted; 9 2. The case is dismissed. Grounds One and Two of the Petition are dismissed 10 without prejudice. Ground Three is dismissed with prejudice; and 11 3. Judgment is to be entered accordingly. 12 13 || DATED: September 25, 2019 gd KQacreipmy 14 fam KLAUSNER United States District Judge 15 16 17 18 19 20 21 22 23 24