(HC) Tapia v. Cisneros

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 JAMIE G. TAPIA, Case No.: 22cv283-LL-NLS 13 Petitioner, ORDER DENYING MOTION FOR 14 v. RELIEF FROM JUDGMENT AND 15 T. CISNEROS, Warden, DENYING A CERTIFICATE OF Respondent. APPEALABILITY [17] 18 Presently before the Court is a Motion for Relief from Judgment by Petitioner Jamie 19 G. Tapia, a state prisoner proceeding pro se, constructively filed on April 15, 2024.1 ECF 20 No. 19. Petitioner seeks relief from this Court’s May 19, 2023, judgment denying his First 21 Amended Petition for a Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 and 22 issuing a limited Certificate of Appealability. ECF No. 18. Petitioner requests the Court 23 reopen the judgment to allow him to file a Notice of Appeal and a request for a Certificate 24 of Appealability. ECF No. 19 at 1-10. [26] 27 1 Petitioner is entitled to the benefit of the “mailbox rule” which provides for constructive filing of court documents as of the date they are submitted to the prison authorities for [28] 1 I. Background 2 Petitioner is serving a state prison term of seven years to life plus ten years plus four 3 years and four months as a result of convictions for kidnapping during a carjacking, assault 4 with a firearm, corporal injury to a spouse, carrying a loaded firearm with intent to commit 5 a felony, two counts of making a criminal threat and firearm use findings. ECF No. 16-2 6 at 294-310; ECF No. 16-11. Petitioner raised two claims in this Court: (1) Because the 7 evidence at trial established he accidentally fired his gun, the failure of the trial court to 8 modify a pattern jury instruction on the firearm use allegation and to give a pinpoint 9 instruction on accident violated his state and federal constitutional rights to due process 10 and trial by jury; and (2) the prosecutor committed misconduct by repeatedly referring to 11 Petitioner as a “monster” during closing argument and appealing to the jurors’ emotions 12 by asking them to place themselves in the victim’s position, and defense counsel was 13 ineffective for failing to object, in violation of his Fifth, Sixth and Fourteenth Amendment 14 rights to a fair trial, adequate representation and due process. ECF No. 8 at 6-16. 15 On May 19, 2023, this Court denied relief on both claims and granted a Certificate 16 of Appealability limited to Claim Two. ECF No. 18. Petitioner constructively filed the 17 instant Motion for Relief from Judgment on April 15, 2024. ECF No. 19. He states that: 18 (1) he is not fluent in English; (2) he was recently transferred from a prison where another 19 inmate was assisting him in this matter; (3) he recently found someone at his new prison 20 to assist him in this action; (4) he did not know that he had such a short deadline to file a 21 notice of appeal; (5) he is filing this motion within one year of entry of judgment based on 22 mistake or excusable neglect; (6) he has been diligently pursuing this case and excusable 23 neglect for failing to timely file a notice of appeal can take into consideration all relevant 24 circumstances; and (7) taking into account all relevant circumstances he has shown 25 excusable neglect for failing to file a timely notice of appeal. Id. at 2-3 . 26 II. Discussion 27 Under Rule 60 of the Federal Rules of Civil Procedure, a motion for “relief from a 28 final judgment, order or proceeding” may be filed within a “reasonable time,” but usually 1 must be filed “no more than a year after the entry of the judgment or order or the date of 2 the proceeding.” FED. R. CIV. P. 60(c)(1). Rule 60(b) provides for reconsideration where 3 one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable 4 neglect; (2) newly discovered evidence which by due diligence could not have been 5 discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is 6 void; (5) the judgment has been satisfied; (6) any other reason justifying relief. FED. R. 7 CIV. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). 8 The application of Rule 60(b) “is remedial in nature and must be liberally applied.” 9 Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). Nevertheless, Rule 60(b) provides for 10 extraordinary relief and requires a showing of exceptional circumstances. Engleson v. 11 Burlington N.R. Co., 972 F.2d 1038 , 1044 (9th Cir. 1994). 12 Petitioner seeks relief from judgment here based on his lack of awareness of the 3013 day deadline to timely file a notice of appeal caused by his lack of fluency in English 14 coupled with the loss of the person assisting him with this action.2 “Neither ignorance nor 15 carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 16 60(b)(1).” Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 17 1997), quoting Engleson v. Burlington Northern R. Co., 972 F.2d 1038, 1043 (9th Cir. 18 1992); Birch v. DelPorto, No. 19cv0325-MMD (WGC), 2020 WL 1692958 , at *1 (D. Nev. 19 Apr. 6, 2020) (lack of access to legal resources and legal assistance in prison did not prevent 20 plaintiff from filing a timely motion for extension of time). Petitioner has not shown 21 excusable neglect under Rule 60(b)(1), nor shown extraordinary circumstances under Rule 22 60(b)(6), nor any other reason justifying relief from the Court’s judgment. In fact, 23 Petitioner does not challenge the Court’s judgment of dismissal of his habeas petition. [24] 25 2 The Court will not construe the instant Motion as a second or successive petition. See Gonzalez v. Crosby, 545 U.S. 532 (2005) (holding that if a Rule 60(b) motion attacks a [26] defect in the integrity of the federal habeas proceedings rather than the substance of the 27 federal court’s resolution on the merits of the claims, the motion will not be barred as a second or successive petition). [28] 1 Rather, Petitioner seeks an extension of time to file a notice of appeal and a request 2 for a Certificate of Appealability. Pursuant to Rule 4(a)(1)(A) of the Federal Rules of 3 Appellate Procedure, the time for filing a notice of appeal with the district court is within 4 30 days of the entry of judgment. Rule 4(a)(4) provides that if a party files a motion for 5 relief under Fed. R. Civ. P. 60 “no later than 28 days after the judgment is entered,” the 6 time to file an appeal runs from the entry of the order disposing of the motion.” Fed. R. 7 App. P. 4(a)(4)(A)(vi). Pursuant to Rule 4(a)(5)(A), the District Court may extend the time 8 to file a notice of appeal “if a party so moves no later than 30 days after the time prescribed 9 by this Rule 4(a) expires” and the party seeking the extension “shows excusable neglect or 10 good cause.” Fed. R. App. P. 4(a)(5)(A)(i), (ii). 11 Here Petitioner’s Rule 60(b) motion does not extend the time to file a notice of 12 appeal because it was not filed within 28 days after judgment was entered. Fed. R. App. P. 13 4(a)(4)(A)(vi). And because Petitioner did not file his request to extend the time to file a 14 notice of appeal within 30 days after the time for filing set out in Rule 4(a)(1)(A), pursuant 15 to Rule 4(a)(5)(A), this Court may not extend the time to file a notice of appeal. Vahan v. 16 Shalala, 30 F.3d 102, 103 (9th Cir. 1994) (holding that a district court lacks authority to 17 grant a motion to extend time for appeal if the motion was filed outside the time limits set 18 by Fed. R. App. P. 4(a)(5)). 19 III. Certificate of Appealability 20 Although the Court granted a Certificate of Appealability limited to claim two, the 21 Court denies a Certificate of Appealability as to the denial of the instant Motion because 22 Petitioner has not shown “that (1) jurists of reason would find it debatable whether the 23 district court abused its discretion in denying the Rule 60(b) motion and (2) jurists of 24 reason would find it debatable whether the underlying section [petition] states a valid claim 25 of the denial of a constitutional right.” United States v. Winkles, 795 F.3d 1134, 1143 (9th 26 Cir. 2015) (emphasis added). To the extent the Court has jurisdiction to consider 27 Petitioner’s request to expand the underlying Certificate of Appealability to include claim 28 one, the request is denied for the reasons set forth in the Court prior dismissal Order. 1 Conclusion and Order 2 Based on the foregoing, the Motion for Relief from Judgment [ECF No. 19] is 3 || DENIED and the Court DENIES a Certificate of Appealability. The Clerk of Court shall 4 || enter judgment accordingly. 5 IT IS SO ORDERED. 6 || Dated: May 2, 2024 NO 7 QF | 8 Honorable Linda Lopez 9 United States District Judge