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. Before the Court are several
post-judgment motions filed by petitioner.
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).
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).
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.
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) (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.
“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.
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.
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.
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.
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.
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