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Braunstein v. Cox

United States District Court, D. Nevada

March 17, 2017

JAMES COX, et al., Respondents.



         This 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. Before the Court are several post-judgment motions filed by petitioner.

         By order filed August 22, 2012, this Court granted respondents' motion to dismiss petitioner's federal habeas corpus petition. (ECF No. 37). The petition was dismissed with prejudice on the ground that all claims were procedurally defaulted. (Id.). This Court denied petitioner a certificate of appealability. (Id.). Judgment was entered on August 22, 2012. (ECF No. 38). Petitioner appealed this Court's order and judgment. (ECF No. 39). On October 3, 2012, the Ninth Circuit Court of Appeals denied petitioner's request for a certificate of appealability and dismissed the appeal. (ECF No. 43). Petitioner filed a petition for a writ of certiorari, and on January 22, 2013, the United States Supreme Court denied the petition. (ECF No. 46).

         On October 1, 2015, petitioner filed in this Court a “motion for leave and reconsideration” (ECF No. 47) and a “motion for relief from order” (ECF No. 48). The “motion for relief from order” is written on a form habeas petition and appears to be a petition. (ECF No. 48). Respondents opposed petitioner's motions. (ECF No. 49).

         Under Fed.R.Civ.P. 60(b) the court may relieve a party from a final judgment or order for the following reasons:

(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.

         A 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. 60(c)(1).

         The 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) (habeas 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.

         A “habeas petitioner may move for relief from the denial of habeas under Rule 60(b) so long as the motion is not the equivalent of a successive petition.” Harvest v. Castro, 531 F.3d at 745 (citing Gonzales v. Crosby, 545 U.S. at 535-36). In 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. 2009).

         Here, the federal petition was dismissed with prejudice as procedurally barred. (ECF No. 37). Petitioner's “motion for relief from order” (ECF No. 48) is merely a successive petition raising habeas claims. Petitioner's concurrent filing of a “motion for leave and reconsideration” (ECF No. 47) is a one-page document that does nothing to explain a basis for reconsideration of this Court's order dismissing the petition as procedurally barred.

         Moreover, 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 three 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 dismissal of this action. Petitioner has not shown extraordinary circumstances justifying reconsideration of the order dismissing the petition with prejudice. Petitioner's motions for reconsideration (ECF Nos. 47 & 48) are denied.

         Petitioner filed a “motion for declaratory order” on October 30, 2015. (ECF No. 51). Respondents opposed petitioner's motion. (ECF No. 52). Petitioner's motion does not argue for any specific declaratory relief. Petitioner appears to allege that the Court failed to take into account his other federal habeas case, 2:07-cv-00014-RLH-GWF, which was denied on the merits by order filed July 6, 2010. (ECF No. 115 in 2:07-cv-00014-RLH-GWF). The record in the instant case indicates that this Court was aware of petitioner's habeas petition in case 2:07-cv-00014-RLH-GWF. (See Order, at ECF No. 37, at p. 1, n.1). Nothing in petitioner's motion for declaratory order causes this Court to disturb the decision in the instant case. Moreover, the Court agrees with respondents' assertion that petitioner's motion is frivolous. Petitioner's motion for a declaratory order is denied.

         On November 12, 2015, petitioner filed a “motion to recall mandate of August 22, 2012.” (ECF No. 53). Petitioner apparently refers to this Court's order of August 22, 2012, and judgment dismissing the petition with prejudice. (ECF Nos. 37 & 38). Petitioner appears to state that this Court lacked jurisdiction to rule on his federal habeas petition, an argument that is wholly frivolous. Petitioner's “motion to recall mandate of August 22, 2012” is denied.

         Petitioner filed a motion for a protective order on November 18, 2015. (ECF No. 55). Petitioner appears to seek a protective order against the Deputy Attorney General representing respondents in ...

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