Opinion
No. 2:13-cv-0711 GGH P
12-11-2013
GERALD A. HARPER, Petitioner, v. FRANK CHAVEZ, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a document styled "motion for F.R.A.P. Rule 60(b)(1)(2)(3)," which the court construes as an application for relief from final judgment, pursuant to Federal Rule of Civil Procedure 60(b).
In his motion, plaintiff claims obstruction of justice by Sacramento County Superior Court in intentionally withholding files in a state court case which affected his previous habeas petition filed in this court, case number 2:06-cv-1190. (ECF No. 6 at 3.) The court's order dismissing the current action as successive on May 29, 2013, noted that petitioner had previously filed two applications for a writ of habeas corpus attacking the same conviction and sentence challenged in this case. (Harper v. Tilton, CIV-06-1190 GHK P (denied on the merits), and Harper v. Tilton, case no. 12-cv-1032 CMK P (filed April 19, 2012 and transferred to the Ninth Circuit Court of Appeals as successive on July 6, 2012)).
Petitioner now challenges this same state court conviction under Rule 60(b)(1)(2) and/or (3). He is not, however, attacking the judgment in this case finding the petition successive. Rather, he is attacking the 2006 judgment by appearing to claim a fraud on this court in the 2006 case based on his assertion that the state court intentionally and unlawfully withheld files from him, and incorrectly claimed those files were lost, which adversely impacted the outcome of his 2006 habeas petition. (ECF No. 6 at 3-4.) Therefore, it appears that petitioner's motion for relief from judgment was inadvertently filed in the instant action, and should have been filed in the 2006 action.
Accordingly, IT IS ORDERED that: the Clerk of the Court shall transfer petitioner's motion for relief from judgment under Rule 60(b), filed November 15, 2013, (ECF no. 6), from this case and file it in Harper v. Tilton, No. 2:06-cv-1190 GHK.
Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE