Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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UNITED STATES DISTRICT COU ·······i
DISTRICT OF ARIZONA
GREGORY ALLEN WATERMAN, )
) CIV 02-2368 PHX JWS
Petitioner, )
I
vs. ) ORDER FROM CHAMBERS
I
DORA B. SCHRIRO, et al ) [RE: Motions at
) dockets 87 and 88]
Respondents. )
I
Summary
For the reasons discussed below, this order grants the motions at dockets 87
and 88 and vacates both the order at docket 85 and the judgment at docket 86. Upon
conclusion of proceedings in the Court of Appeals, this court will address the report and
recommendation at docket 73 and the objections thereto at docket 84.
Motion at docket 87
At docket 87, petitioner asks this court to indicate whether it will entertain a
motion for relief from judgment pursuant to Rule 60(b). The motion is well taken. As
petitioner points out, this court rendered its decision without taking into account the
holding by the Ninth Circuit in Isley v. Arizona Department of Corrections} That
decision makes clear that the filing of the "Notice of Post Conviction Relief" is deemed
jess F.3d 1054 (9*** car. 2004).
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to be the commencement of the collateral proceeding in state court, even though the
"actuaI petition" is not filed in state court until much later. Here, the Magistrate Judge
correctly found that Waterman’s Notice was filed on February 22, 1997.2 Thus, the
federal statute of limitation for filing a petition for a writ of habeas corpus in this federal
court did not commence running on March 22, 1997 as this court concluded in its order
at docket 85, because it had been tolled by the tiling of the Notice on February 22,
1997. Accordingly, the motion at docket 87 is GRANTED; this court will entertain the
motion at docket 88.
Motion at docket 88
The motion at docket 88 also turns upon the court’s failure to consider the
decision in Isley. Relief from the judgment is appropriate under Rule 60(b)(6) based
upon the following considerations: This court clearly erred by not considering Isley.
That error will result in an appeal which is bound to succeed. The successful appeal
would doubtless result in returning the matter to this court so that the process which
governs the review of recommendations by the magistrate judge can be properly .
completed. Thus, all that failing to vacate the judgment can accomplish is delay in the
processing of this case. For these reasons, Rule 60(b)(6) should be construed to afford
relief in this case.3 The motion at docket 88 is GRANTED.
2Doc. 73 at p. 3 citing CR 87, Ex. A.
3See Fed. R. Civ. P. 1.
-2-
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| Dockets 85 and 86
y For the reasons set out above, the order at docket 85 is VACATED and the
j Judgment at docket 86 is VACATED.
N Parties To Notify Court of Appeals
I
j The parties will please take such steps as are necessary to advise the Court of
Appeals of this order. Following dismissal of the pending appeal, this court will then
j exercise its jurisdiction to decide the issues presented with respect to the report and
recommendation by the magistrate judge at docket 73 and the objections thereto at
docket B4.
DATED at Anchorage, Alaska this 30"‘ day of June 20
J l—IN W. SEDWICK
UNITE STATES DISTRICT JUDGE
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