Opinion
No. CR-92-0403 MMC.
February 3, 2010
Before the Court is defendant Rafael Cornejo's "Motion Seeking Reconsideration and Relief, Pursuant to Fed.R.Civ.P. Rule 60(b)(6), of Previously Denied Protected Consitutional Claims," filed November 16, 2009. On January 28, 2010, defendant filed a "reply," correctly noting therein that the government had not filed opposition to the instant motion by January 15, 2010, the deadline set forth in the Court's order of December 11, 2009. On January 29, 2010, the government filed its opposition to the instant motion, and requests therein that the Court consider the opposition despite its untimeliness.
The government fails to explain in any detail the reason(s) it could not have filed its opposition by January 15, 2010. Nonetheless, the Court will exercise its discretion to consider the opposition because the government has raised therein the issue of the Court's subject matter jurisdiction to consider the instant motion, and the issue of subject matter jurisdiction cannot be waived by a party. See United States v. Cotton, 525 U.S. 625, 630 (2002) (holding "subject matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived"). In particular, by arguing that the instant motion is "precluded by the successive petition rules," (see Pl.'s Opp. at 2:26-27), the government has raised a jurisdictional challenge to the Court's consideration of the merits of the instant motion.See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (holding district court lacks jurisdiction to consider merits of claim for relief under 28 U.S.C. § 2255 where claim is "successive").
Accordingly, the government's request that the Court consider its opposition is hereby GRANTED.
In light of the above finding, the deadline for defendant to file a reply to the opposition is hereby EXTENDED to March 1, 2010.