Opinion
No. 1:05-CV-0498 OWW LJO HC.
February 16, 2006
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 15, 2005, the Magistrate Judge issued a Findings and Recommendation that recommended the petition be dismissed for failure to exhaust state remedies. On November 30, 2005, the undersigned adopted the Findings and Recommendation in full, dismissed the case, and directed that judgment be entered. The Clerk of Court entered judgment on the same date.
On January 13, 2006, Petitioner filed a document entitled "Missing Notice" in which Petitioner states that he never received a copy of the Magistrate Judge's Findings and Recommendation. Petitioner declares he was never given an opportunity to file objections. Petitioner requests that the Court give him an opportunity to file his objections. Therefore, the Court hereby CONSTRUES Petitioner's document entitled "Missing Notice" as a motion for reconsideration pursuant to Federal Rules of Civil Procedure § 60(b).
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,
the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Petitioner has shown good cause to relieve him from final judgment.
Accordingly, IT IS HEREBY ORDERED:
1. Petitioner's document entitled "Missing Notice" is CONSTRUED as a motion for reconsideration;
2. Petitioner's motion for reconsideration is GRANTED;
3. The judgment entered on November 30, 2005, is VACATED;
4. The Clerk of Court is DIRECTED to re-serve Petitioner with the Magistrate Judge's Findings and Recommendation; and
5. Petitioner is granted thirty (30) days from the date of service of this order to file a response to the Findings and Recommendation as set forth in the Findings and Recommendation.
IT IS SO ORDERED.