Bush v. Neuschmid ( 2019 )

1 `` 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ANTHONY ARTHUR BUSH, Case No.: 19cv1508-CAB-NLS 10 Petitioner, ORDER DENYING MOTION TO 11 v. VACATE SUMMARY DISMISSAL [Doc. No. 8] 12 ROBERT NEUSCHMID, 13 Respondent. 14 15 On August 9, 2019, Petitioner Anthony Arthur Bush, a state prisoner proceeding 16 pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 US.C. §2254 17 (“Petition”). [Doc. No. 1.] On September 16, 2019, this Court issued a summary 18 dismissal of the Petition pursuant to 28 U.S.C. §2244(b)(3)(A) on the grounds that 19 Petitioner had already filed a previous petition regarding the same (September 1995) state 20 court conviction and had not received permission from the Ninth Circuit Court of 21 Appeals to file a successive petition. [Doc. No. 2.] On October 30, 2019, Petitioner filed 22 a notice of appeal with the Ninth Circuit Court of Appeals. [Doc. No. 3.] On November 23 19, 2019, Petitioner filed a motion to vacate summary dismissal pursuant to Rule 60(a), 24 (b)(1), (3) and (4). [Doc. No. 8.] 25 A. Legal Standard. 26 Rule 60 provides for extraordinary relief and may be invoked only upon a showing 27 of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 28 (9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final 1 ||judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or 2 ||excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could 3 ||not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud by 4 ||the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) and 5 || other reason justifying relief.” Fed. R. Civ. P. 60(b). Further, the Rule provides that a 6 motion brought under it “must be made within a reasonable time — and for reasons (1), 7 ||(2), and (3) no more than a year after the entry of judgment or order of the date of the 8 || proceeding.” Fed. R. Civ. P. 60(c). 9 B. Discussion. 10 Here, Petitioner does not present grounds under Rule 60. Rather, he argues that the 11 court judgment of conviction is incorrect, he has asked the state court to correct the 12 ||error, and the state court has refused to do so. [Doc. No. 8 at 1.] Nevertheless, Petitioner 13 || continues to seek review in this court of the same state court judgment that was the 14 || subject of his previous petition. As a result, this is a successive petition, and Petitioner 15 || must obtain permission from the Ninth Circuit Court of Appeals to file a successive 16 || petition. See 28 U.S.C. §2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 17 (2007). 18 C. Conclusion. 19 For the reasons set forth above, the motion to vacate summary dismissal is 20 || DENIED. 21 IT IS SO ORDERED. 22 ||Dated: December 5, 2019 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28