(HC) Phea v. Pfeiffer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MALANJE PHEA, No. 2:20-cv-00283 WBS GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CHRISTIAN PFEIFFER, Warden, 15 Respondent. 16 17 Pending before the court is petitioner’s Amended Motion for Relief From Judgment pursuant 18 to Fed. R. Civ. P. 60(b). ECF No. 73. Also pending is petitioner’s Request for an Evidentiary Hearing. 19 ECF No. 72. The amended motion and request for evidentiary hearing were improperly filed after the 20 Honorable William B. Shubb had ordered the case stayed pending decision on petitioner’s 21 interlocutory appeal. ECF No. 67. The Ninth Circuit has now dismissed the interlocutory appeal. 22 ECF Nos. 68, 70. 23 Under Federal Rule of Civil Procedure 60(b), a party may seek relief from judgment or order 24 in limited circumstances such as mistake, newly discovered evidence, and fraud. Fed. R. Civ. P. 25 60(b)(1)-(3). “Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of 26 Civil Procedure are addressed to the sound discretion of the district court.” Allmerica Financial 27 Life Insurance and Annunity Company v. Llewellyn,139 F.3d 664, 665 (9th Cir.1997). “A motion 28 //// 1 under Rule 60(b) must be made within a reasonable time” and “no more than a year after the 2 entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).1 3 In his amended motion, petitioner seeks this court to “vacate the final judgment in this 4 case and to reopen the case and hear the petitioner Malanje Phea’s constitutional claims on the 5 true merits.” ECF No. 73 at 1-2. Petitioner further asserts the undersigned’s February 17, 2021 6 Findings and Recommendations recommending dismissal of petitioner’s habeas petition contains 7 procedural errors in its application of state law. Id. 8 To the extent, petitioner is seeking relief pursuant to Rule 60(b), relief is not available 9 here because no final judgment has been entered in this action. Fed. R. Civ. P. 60(b) advisory 10 committee’s notes (“The addition of the qualifying word “final” emphasizes the character of the 11 judgments, orders or proceedings from which Rule 60(b) affords relief.”). If petitioner is seeking 12 reconsideration of the undersigned’s February 17, 2021 Findings and Recommendations, the 13 proper filing is an Objection to the Findings and Recommendations as set forth in the February 14 17, 2021 Findings and Recommendations. ECF No. 52. 15 In accordance with the above, IT IS HEREBY ORDERED that 16 1. The stay of this action is LIFTED; and 17 2. Petitioner’s Request for an Evidentiary Hearing (ECF No. 72) is DENIED. 18 Further, IT IS HEREBY RECOMMENDED that petitioner’s Amended Motion for Relief 19 from Judgment (ECF No. 73) be DENIED. 20 These Findings and Recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 //// 26 //// 27 //// 28 1 The one-year time period is limited to motions under Rule 60(b) (1)-(3). 1 objections shall be filed and served within fourteen days after service of the objections. The 2 parties are advised that failure to file objections within the specified time may waive the right to 3 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Dated: October 21, 2021 /s/ Gregory G. Hollows 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28