Bush v. Neuschmid
- Proceeding
- original
- Outcome
- other — C
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Petitioner Anthony Arthur Bush, a state prisoner proceeding pro se, moved to vacate the court's summary dismissal of his second habeas corpus petition under Federal Rule of Civil Procedure 60. The court denied the motion, finding that the petitioner failed to present valid Rule 60 grounds and that the underlying petition remained a barred successive petition requiring authorization from the Ninth Circuit.
| What the court decided | The model |
|---|---|
Motion to Vacate Summary Dismissal Denied“For the reasons set forth above, the motion to vacate summary dismissal is DENIED.” | agree with court The court correctly applied the legal standard for Rule 60(b) motions, which require a showing of exceptional circumstances. The petitioner's arguments regarding the state court's refusal to correct the conviction do not constitute grounds for relief under Rule 60(b)(1) through (6). Furthermore, the court correctly identified that the underlying habeas petition is a successive petition under 28 U.S.C. § 2244(b)(3)(A), which requires prior authorization from the court of appeals. Because the petitioner did not obtain this authorization, the district court lacked jurisdiction to consider the merits of the successive petition, and the motion to vacate the dismissal was properly denied. |
The order itself: sound — The order is legally sound. It correctly identifies the high bar for Rule 60(b) relief and notes that the petitioner's arguments regarding the state court's actions do not fit within the statutory grounds for vacatur. It also correctly applies the jurisdictional bar on successive habeas petitions under 28 U.S.C. § 2244(b)(3)(A), citing the appropriate Supreme Court precedent (Burton v. Stewart) to support the requirement for appellate authorization. The reasoning is concise but sufficient to support the denial.
Opinion
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