Opinion
Case No. 5:17-cv-00520-RGK-MAA
12-10-2020
SANG HING WONG, JR., Petitioner, v. CDC SECRETARY SCOTT KERNAN, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner's Motion for Enlargement of Time to File Motion for Relief from Judgment or For Reconsideration; New Trial; Altering or Amending a Judgment ("Motion") (ECF No. 125), the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge.
The Court also has reviewed Petitioner's objections to the Report and Recommendation, which the Court received and filed on November 17, 2020 ("Objections"). (Objs., ECF No. 130.) As required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the Report and Recommendation to which Petitioner specifically has objected.
In his Objections, Petitioner argues that the Magistrate Judge mischaracterized the procedural history by stating that the United States Court of Appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability on June 30, 2020. (Objs. 2; see Rep. & Recommendation, ECF No. 128, at 2.) However, the Ninth Circuit's June 30, 2020 order stated as follows: "The request for a certificate of appealability (Docket Entry No. 11) is denied because appellant has not made a 'substantial showing of the denial of a constitutional right.'" (quoting 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). (ECF No. 124.) Thus, the Magistrate Judge did not mischaracterize this order.
Next, Petitioner acknowledges that Federal Rule of Civil Procedure 6(b)(2) prohibits courts from extending the time period to file Rule 59(b), (e), or Rule 60(b) motions. (Objs. 3.) However, Petitioner argues that he is entitled to relief under Rule 60(d), which provides that courts retain the power to "(1) entertain an independent action to relieve a party from a judgment, order, or proceeding . . . or (3) set aside a judgment for fraud on the court." Fed. R. Civ. P. 60(d)(1), (3). (Objs. 2-7.) Petitioner's Motion sought an extension of time in which to file a motion for relief under Rules 59 and 60(b). (See Mot.) Accordingly, the Report and Recommendation addressed this extension request. (See Rep. & Recommendation.) The Court declines to consider Petitioner's request for Rule 60(d) relief, which was raised for the first time in his Objections.
All further references to the Rules are to the Federal Rules of Civil Procedure, unless otherwise stated.
The Court finds no defect of law, fact, or logic in the Report and Recommendation. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge, and overrules the Objections.
IT THEREFORE IS ORDERED that the Report and Recommendation of the Magistrate Judge is accepted. DATED: December 10, 2020
/s/_________
R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE