United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
closed action is a pro se petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254 by a
Nevada state prisoner. This matter comes before the Court on
petitioner's motion for Rule 60(b) relief and
petitioner's motion for the appointment of counsel. (ECF
Nos. 19 & 20).
November 28, 2011, petitioner's federal petition was
dismissed with prejudice as untimely and procedurally
defaulted. (ECF No. 17). The Court also denied petitioner a
certificate of appealability. (Id.). Petitioner did
not file a notice of appeal or attempt to request a
certificate of appealability from the Ninth Circuit Court of
Appeals. Petitioner did file an application for leave to file
a second or successive petition on July 16, 2014, in the
Ninth Circuit Court of Appeals, Case No. 14-72164. His
application was denied on September 30, 2014.
March 9, 2016, petitioner filed a motion for reconsideration,
citing Rule 60(b) of the Federal Rules of Civil Procedure.
(ECF No. 19). Under Fed.R.Civ.P. 60(b) the court may relieve
a party from a final judgment or order for the following
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
motion under Rule 60(b) “must be made within a
reasonable time.” Fed.R.Civ.P. 60(c)(1). Relief based
on mistake, newly discovered evidence, or fraud must be
sought within one year of final judgment. Fed.R.Civ.P.
plain language of Rule 60(b)(6), the Rule's
“catch-all provision, ” provides for relief from
a final order for “any justifiable reason.”
However, courts have added a requirement that a party seeking
Rule 60(b)(6) relief must demonstrate the existence of
“extraordinary circumstances.” Gonzales v.
Crosby, 545 U.S. 524, 535-36 (2005); Lal v.
California, 610 F.3d 518, 524 (9th Cir.
2010); Harvest v. Castro, 531 F.3d 737, 749
(9th Cir. 2008) (petitioner must demonstrate both
an injury and circumstances beyond his control prevent him
from proceeding with his claim). Extraordinary circumstances
typically exist when “an extreme and unexpected
hardship” would result if the relief sought is not
granted. Budget Blinds, Inc. v. White, 536 F.3d 244,
255 (3rd Cir. 2008). Additionally, courts
ordinarily will only grant relief if the moving party is not
at fault and did not cause the extraordinary circumstances to
come into being. Id.; Gonzalez, 545 U.S. at
535-36. Rule 60(b)(6) is to be used “sparingly as an
equitable remedy to prevent manifest injustice.”
Lal, 610 F.3d at 524.
applying Rule 60(b)(6) to habeas petitions, the Ninth Circuit
has considered six factors in exercising that discretion: (1)
a showing of extraordinary circumstances, such as a change in
intervening law; (2) petitioner's exercise of diligence
in pursuing the issue during federal habeas proceedings; (3)
interest in finality; (4) delay between the finality of the
judgment and the motion for Rule 60(b) relief; (5) the degree
of connection between the extraordinary circumstances and the
decision for which reconsideration is sought; and (6) comity
between the state and federal courts. Phelps v.
Alameida, 569 F.3d 1120, 1135-40 (9th Cir.
case, the federal petition was denied as untimely and
procedurally barred. (ECF No. 17). This Court found no basis
for equitable tolling. (Id., at p. 7). Petitioner
also failed to show cause and prejudice to excuse the
procedural default. (Id., at p. 9). Petitioner now
claims that he can show cause and prejudice to excuse his
procedural default, citing Martinez v. Ryan, 13
S.Ct. 1309 (2012). The Ninth Circuit has ruled that
Martinez did not result in a retroactive new rule of
constitutional law. Jones v. Ryan, 733 F.3d 825, 843
(9th Cir. 2013). Petitioner does not address any
basis why this Court should reconsider its ruling that his
petition was untimely filed and procedurally defaulted.
none of the Rule 60(b)(6) factors weigh in favor of
reconsidering the Court's order dismissing the petition.
There has not been an intervening change in the law.
Petitioner has not exercised diligence in bringing his Rule
60(b) motion almost five years after his petition was
dismissed. The State has an interest in the finality of
judgments. Comity between the state and federal courts would
not be advanced by this Court reconsidering its previous
ruling. Petitioner has not shown extraordinary circumstances
justifying reconsideration of the order dismissing the
petition with prejudice. Petitioner's Rule 60(b) motion
with his Rule 60(b) motion, petitioner filed a motion for the
appointment of counsel. (ECF No. 20). This case has concluded
and the Court has denied petitioner's motion for Rule
60(b) relief. As such, petitioner's motion for the
appointment of counsel is denied.
THEREFORE ORDERED that petitioner's motion for Rule 60(b)
relief (ECF No. 19) is DENIED.
FURTHER ORDERED that petitioner's motion for the
appointment of ...