Rodriguez v. Martinez

Opinion

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-2148-MMA (BLM)

12 Petitioner, ORDER DENYING NON- 13 v. STATUTORY MOTION REQUEST FOR PROCEEDING FREE OF 14 SHERIFF KELLEY MARTINEZ, et al., DEFECT

[Doc. No. 12] 16 Respondents. 17 18 Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254, along with a request to proceed in forma pauperis 20 (“IFP”) pursuant to 28 U.S.C. § 1915(a) on November 20, 2023. Doc. Nos. 1–2. The 21 Court denied the IFP motion on December 5, 2023, because Petitioner had not submitted 22 a current trust account statement. Doc. No. 4. Petitioner then paid the $5.00 filing fee on 23 January 4, 2024, and the Court issued an Order to Respond to the Petition. Doc. Nos. 5, 24 7. Petitioner has now filed a document entitled “Non-Statutory Motion Request for 25 Proceeding Free of Defect Gonzalez v. Crosby, 545 U.S. 524, 532–533.” See Doc. No. 26 12. 27 In Gonzalez, the Supreme Court held that “a Rule 60(b)(6) motion in a § 2254 case 28 is not to be treated as a successive habeas petition if it does not assert, or reassert, claims 1 error in the movant’s state conviction.” Gonzalez, 545 U.S. at 538. It is not clear how 2 || Petitioner believes this holding applies to this case. Although the Court determined that 3 || the petition Petitioner filed in S.D. Cal. case no. 3:23-cv-02135-MMA (MSB) was 4 || successive and denied Petitioner’s Rule 60(b) motion in that case, the Court has not 5 || determined the Petition in this case is successive nor has it denied a Rule 60(b) motion. ! 6 || Accordingly, Petitioner’s Non-Statutory Motion Request for Proceeding Free of Defect 7 || Gonzalez v. Crosby, 545 U.S. 524, 532-533 is DENIED. 8 IT IS SO ORDERED. 9 || Dated: March 25, 2024 10 Vth, CTU - (Ligh 11 HON. MICHAEL M. ELLO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 || 27 ||! Petitioner is currently seeking leave from the Ninth Circuit Court of Appeals to file a successive 28 habeas corpus petition in 23-cv-2135-MMA (MSB). See Doc. No. 12 in S.D. Cal. case no. 23-cv-2136- MMA (MSB).