1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 23-cv-2135-MMA (MSB)
12 Petitioner, ORDER: 13 v. (1) DENYING PETITIONER’S MOTION 14 SHERIFF KELLY MARTINEZ, et al., REQUESTING RELIEF FROM 15 Respondents. JUDGMENT [Doc. No. 8]
16 (2) DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY
18 (3) DIRECTING CLERK TO RE-SEND 19 PETITIONER A COPY OF THE COURT’S JANUARY 12, 2024, ORDER 20 [Doc. No. 6] 21 22 Presently before the Court is Petitioner’s Motion requesting relief from judgment 23 pursuant to Fed. R. Civ. P. 60(b). Doc. No. 8. For the reasons discussed below, the 24 Court DENIES Petitioner’s Motion, DECLINES to issue a Certificate of Appealability, 25 and DIRECTS the Clerk to resend Petitioner a copy of the Court’s January 12, 2024, 26 Order. 27 / / / 28 / / / 1 I. RELEVANT PROCEDURAL HISTORY 2 On November 20, 2023, Petitioner Pedro Rodriguez (“Petitioner”), a state prisoner 3 proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, 4 along with a request to proceed in forma pauperis [“IFP”]. Doc. Nos. 1-2. On December 5 4, 2023, the Court denied Petitioner’s request to proceed IFP and dismissed the case 6 without prejudice, directing Petitioner that to have the case reopened he must, no later 7 than January 5, 2024, either provide the Court with the $5.00 filing fee or with adequate 8 proof that Petitioner cannot pay the $5.00 filing fee. See Doc. No. 3. On January 4, 9 2024, Petitioner paid the $5.00 filing fee and filed a request for judicial notice of 10 Petitioner’s delayed receipt of the Court’s December 4, 2023, Order. Doc. Nos. 4-5. On 11 January 12, 2024, the Court issued an order denying Petitioner’s request for judicial 12 notice, summarily dismissing the Petition as second or successive pursuant to 28 U.S.C. 13 § 2244(b)(3)(A), without prejudice to Petitioner filing a petition in this Court if he 14 obtains the necessary order from the Ninth Circuit Court of Appeals and declining to 15 issue a certificate of appealability. Doc. No. 6. The Clerk entered judgment accordingly 16 and closed the case. Doc. No. 7. 17 On February 8, 2024, Petitioner filed the instant motion requesting relief from 18 judgment pursuant to Fed. R. Civ. P. 60(b). Doc. No. 8. He notes that he complied with 19 the Court’s prior order and submitted a timely payment of the filing fee and states he does 20 not know why the instant Petition was denied, citing difficulties he has experienced in 21 receiving mail. Doc. No. 8. 22 II. DISCUSSION 23 Pursuant to Rule 60(b), a court “may relieve a party or its legal representative from 24 a final judgment, order, or proceeding” upon a showing of “(1) mistake, inadvertence, 25 surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 26 diligence, could not have been discovered in time to move for a new trial under Rule 27 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 28 misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 1 satisfied, released, or discharged; it is based on an earlier judgment that has been reversed 2 or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that 3 justifies relief.” Fed. R. Civ. P. 60(b). 4 The Supreme Court has held that “Rule 60(b), like the rest of the Rules of Civil 5 Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only to the 6 extent that (it is) not inconsistent with applicable federal statutory provisions and rules,” 7 which includes the rules governing limitations on second and successive petitions. 8 Gonzalez v. Crosby, 545 U.S. 525, 529 (2005) (internal quote marks, citations, and 9 footnote omitted). Yet, “when a Rule 60(b) motion attacks, not the substance of the 10 federal court’s resolution of a claim on the merits, but some defect in the integrity of the 11 federal habeas proceedings,” the motion itself does not constitute a second or successive 12 petition. Id. at 532; see also id. at 532 n.4. While the Court held the Petition itself was a 13 second or successive application for habeas relief, Petitioner’s instant motion, which only 14 contends the Court erred in dismissing his petition for failure to satisfy the filing fee 15 requirement when he in fact submitted timely payment of the filing fee, is not itself a 16 second or successive application, and the Court therefore has jurisdiction to address the 17 instant Rule 60(b) motion. 18 Petitioner does not specify which Rule 60(b) provision he seeks to satisfy, 19 indicating only that he “seeks relief from denial of petition for writ of habeas corpus as 20 Petitioner has paid 5$ [sic] filing fee and never received notice from Court as to what 21 decision was rendered” because he asserts his mail from Court was returned by jail 22 personnel. Doc. No. 8 at 1-2. However, Petitioner’s assertion that the Court should not 23 have dismissed his habeas proceeding for failing to pay the filing fee when he in fact paid 24 the filing fee does not satisfy any of the provisions of Rule 60(b), given judgment did not 25 issue due to any failure to satisfy the filing fee requirement. Instead, the Court clearly 26 acknowledged timely receipt of the filing fee, see Doc. No. 6 at 1-2, 5, but summarily 27 dismissed the petition on separate grounds, namely because it was barred by the 28 Gatekeeper Provision of 28 U.S.C. § 2244(b)(3)(A) as a successive petition for which 1 Petitioner had not obtained permission from the Ninth Circuit Court of Appeals to file. 2 See generally Doc. No. 6. Upon review, given Petitioner does not attempt to satisfy, 3 much less actually satisfy, any of the provisions of Rule 60(b), Petitioner’s motion [Doc. 4 No. 8] is denied. 5 III. CERTIFICATE OF APPEALABILITY 6 A certificate of appealability (“COA”) is required to appeal to the court of appeals 7 “the final order in a habeas corpus proceeding in which the detention complained of 8 arises out of process issued by a State court,” and is warranted “only if the applicant has 9 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 10 § 2253(c)(1)(A) and (c)(2). “When the district court denies a habeas petition on 11 procedural grounds without reaching the prisoner’s underlying constitutional claim, a 12 COA should issue when the prisoner shows, at least, that jurists of reason would find it 13 debatable whether the petition states a valid claim of the denial of a constitutional right 14 and that jurists of reason would find it debatable whether the district court was correct in 15 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 Additionally, “a COA is required to appeal the denial of a Rule 60(b) motion” in a 17 section 2254 habeas case. Payton v. Davis, 906 F.3d 812, 818 and n. 8 (9th Cir. 2018), 18 citing United States v. Winkles,
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 23-cv-2135-MMA (MSB)
12 Petitioner, ORDER: 13 v. (1) DENYING PETITIONER’S MOTION 14 SHERIFF KELLY MARTINEZ, et al., REQUESTING RELIEF FROM 15 Respondents. JUDGMENT [Doc. No. 8]
16 (2) DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY
18 (3) DIRECTING CLERK TO RE-SEND 19 PETITIONER A COPY OF THE COURT’S JANUARY 12, 2024, ORDER 20 [Doc. No. 6] 21 22 Presently before the Court is Petitioner’s Motion requesting relief from judgment 23 pursuant to Fed. R. Civ. P. 60(b). Doc. No. 8. For the reasons discussed below, the 24 Court DENIES Petitioner’s Motion, DECLINES to issue a Certificate of Appealability, 25 and DIRECTS the Clerk to resend Petitioner a copy of the Court’s January 12, 2024, 26 Order. 27 / / / 28 / / / 1 I. RELEVANT PROCEDURAL HISTORY 2 On November 20, 2023, Petitioner Pedro Rodriguez (“Petitioner”), a state prisoner 3 proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, 4 along with a request to proceed in forma pauperis [“IFP”]. Doc. Nos. 1-2. On December 5 4, 2023, the Court denied Petitioner’s request to proceed IFP and dismissed the case 6 without prejudice, directing Petitioner that to have the case reopened he must, no later 7 than January 5, 2024, either provide the Court with the $5.00 filing fee or with adequate 8 proof that Petitioner cannot pay the $5.00 filing fee. See Doc. No. 3. On January 4, 9 2024, Petitioner paid the $5.00 filing fee and filed a request for judicial notice of 10 Petitioner’s delayed receipt of the Court’s December 4, 2023, Order. Doc. Nos. 4-5. On 11 January 12, 2024, the Court issued an order denying Petitioner’s request for judicial 12 notice, summarily dismissing the Petition as second or successive pursuant to 28 U.S.C. 13 § 2244(b)(3)(A), without prejudice to Petitioner filing a petition in this Court if he 14 obtains the necessary order from the Ninth Circuit Court of Appeals and declining to 15 issue a certificate of appealability. Doc. No. 6. The Clerk entered judgment accordingly 16 and closed the case. Doc. No. 7. 17 On February 8, 2024, Petitioner filed the instant motion requesting relief from 18 judgment pursuant to Fed. R. Civ. P. 60(b). Doc. No. 8. He notes that he complied with 19 the Court’s prior order and submitted a timely payment of the filing fee and states he does 20 not know why the instant Petition was denied, citing difficulties he has experienced in 21 receiving mail. Doc. No. 8. 22 II. DISCUSSION 23 Pursuant to Rule 60(b), a court “may relieve a party or its legal representative from 24 a final judgment, order, or proceeding” upon a showing of “(1) mistake, inadvertence, 25 surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 26 diligence, could not have been discovered in time to move for a new trial under Rule 27 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 28 misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 1 satisfied, released, or discharged; it is based on an earlier judgment that has been reversed 2 or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that 3 justifies relief.” Fed. R. Civ. P. 60(b). 4 The Supreme Court has held that “Rule 60(b), like the rest of the Rules of Civil 5 Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only to the 6 extent that (it is) not inconsistent with applicable federal statutory provisions and rules,” 7 which includes the rules governing limitations on second and successive petitions. 8 Gonzalez v. Crosby, 545 U.S. 525, 529 (2005) (internal quote marks, citations, and 9 footnote omitted). Yet, “when a Rule 60(b) motion attacks, not the substance of the 10 federal court’s resolution of a claim on the merits, but some defect in the integrity of the 11 federal habeas proceedings,” the motion itself does not constitute a second or successive 12 petition. Id. at 532; see also id. at 532 n.4. While the Court held the Petition itself was a 13 second or successive application for habeas relief, Petitioner’s instant motion, which only 14 contends the Court erred in dismissing his petition for failure to satisfy the filing fee 15 requirement when he in fact submitted timely payment of the filing fee, is not itself a 16 second or successive application, and the Court therefore has jurisdiction to address the 17 instant Rule 60(b) motion. 18 Petitioner does not specify which Rule 60(b) provision he seeks to satisfy, 19 indicating only that he “seeks relief from denial of petition for writ of habeas corpus as 20 Petitioner has paid 5$ [sic] filing fee and never received notice from Court as to what 21 decision was rendered” because he asserts his mail from Court was returned by jail 22 personnel. Doc. No. 8 at 1-2. However, Petitioner’s assertion that the Court should not 23 have dismissed his habeas proceeding for failing to pay the filing fee when he in fact paid 24 the filing fee does not satisfy any of the provisions of Rule 60(b), given judgment did not 25 issue due to any failure to satisfy the filing fee requirement. Instead, the Court clearly 26 acknowledged timely receipt of the filing fee, see Doc. No. 6 at 1-2, 5, but summarily 27 dismissed the petition on separate grounds, namely because it was barred by the 28 Gatekeeper Provision of 28 U.S.C. § 2244(b)(3)(A) as a successive petition for which 1 Petitioner had not obtained permission from the Ninth Circuit Court of Appeals to file. 2 See generally Doc. No. 6. Upon review, given Petitioner does not attempt to satisfy, 3 much less actually satisfy, any of the provisions of Rule 60(b), Petitioner’s motion [Doc. 4 No. 8] is denied. 5 III. CERTIFICATE OF APPEALABILITY 6 A certificate of appealability (“COA”) is required to appeal to the court of appeals 7 “the final order in a habeas corpus proceeding in which the detention complained of 8 arises out of process issued by a State court,” and is warranted “only if the applicant has 9 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 10 § 2253(c)(1)(A) and (c)(2). “When the district court denies a habeas petition on 11 procedural grounds without reaching the prisoner’s underlying constitutional claim, a 12 COA should issue when the prisoner shows, at least, that jurists of reason would find it 13 debatable whether the petition states a valid claim of the denial of a constitutional right 14 and that jurists of reason would find it debatable whether the district court was correct in 15 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 Additionally, “a COA is required to appeal the denial of a Rule 60(b) motion” in a 17 section 2254 habeas case. Payton v. Davis, 906 F.3d 812, 818 and n. 8 (9th Cir. 2018), 18 citing United States v. Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015). The Court finds a 19 certificate of appealability is not warranted here because no “jurists of reason would find 20 it debatable whether the district court was correct” in denying Petitioner’s Rule 60(b) 21 motion. See Fed. R. Civ. P. 60(b); 28 U.S.C. § 2253(c); Slack, 529 U.S. at 484; Payton, 22 906 F.3d at 818 and n. 8; Winkles, 795 F.3d at 1142. Accordingly, the Court declines to 23 issue a COA. 24 IV. CONCLUSION AND ORDER 25 As discussed above, the DENIES Petitioner’s motion requesting relief from 26 judgment pursuant to Rule 60(b) [Doc. No. 8]. The Court DECLINES to issue a 27 certificate of appealability. In view of Petitioner’s professed difficulties in receiving his 28 mail and specifically his indication that he did not receive a copy of the Court’s January 1 |} 12, 2024, Order, the Court DIRECTS the Clerk to re-send Petitioner a copy of the 2 ||Court’s January 12, 2024, Order [Doc. No. 6]. 3 As previously noted in the January 12, 2024, Order, see Doc. No. 6 at 2-3, the 4 || Court again reiterates that with respect to Petitioner’s contentions that the Sheriff’s 5 || Department is withholding his mail, to the extent Petitioner wishes to pursue claims 6 || concerning the conditions of his confinement at the San Diego County Jail, such claims 7 || must be brought, if at all, in a civil rights complaint filed pursuant to Section 1983. See 8 || Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper remedy 9 || for a state prisoner who is making a constitutional challenge to the conditions of his 10 prison life, but not to the fact or length of his custody.”); see also Nettles v. Grounds, 830 11 || F.3d 922, 931 (9th Cir. 2016) (en banc) (“[W]e hold that if a state prisoner’s claim does 12 || not lie at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but must be 13 || brought, ‘if at all,’ under § 1983.”), quoting Preiser, 411 U.S. at 487); Skinner v. Switzer, 14 U.S. 521, 535 n.13 (2011). 15 IT IS SO ORDERED. 16 || Dated: February 15, 2024 17
19 United States District Judge 20 21 22 23 24 25 26 27 28