Opinion
Case No. 2:11-CV-00585-KJD-(LRL)
08-03-2012
MICHAEL ALLAN CLARK, Petitioner, v. DWIGHT NEVEN, et al., Respondents.
ORDER
Before the court is petitioner's unopposed motion for relief from judgment and order pursuant to Federal Rules of Civil Procedure 60(b) and 62.1 (#22) and respondents' response (#23). Because this action is on appeal, this court lacks authority to grant the motion, but it may:
(1) defer considering the motion;Fed. R. Civ. P. 62.1(a).
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
The court directed petitioner, proceeding pro se, to file an amended petition that complied with Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts; the original petition (#6) contained cross-references back and forth throughout the petition, legal argument, and a press release. Order (#5). Petitioner filed nothing in the allotted time, not even a motion for enlargement of time, and the court dismissed the action. Order (#9). Petitioner appealed. He then filed a motion for permission to file an amended petition (#16). The court denied that motion because petitioner proposed a procedure that would have been even more confusing than the original petition (#6). The court is inclined to grant the current motion (#22) only because counsel now represents petitioner and respondents do not oppose it.
IT IS THEREFORE ORDERED that the court would grant the motion for relief from judgment and order pursuant to Federal Rules of Civil Procedure 60(b) and 62.1 (#22) if the court of appeals remands for that purpose.
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KENT J. DAWSON
United States District Judge