United States District Court, D. Nevada
Witter is a Nevada prisoner sentenced to death. On August 12,
2014, this court entered a final judgment denying
Witter's petition for writ of habeas corpus under 28
U.S.C. § 2254. ECF No. 248. Now before the court is
Witter's motion for relief from judgment pursuant to Rule
60(b) of the Federal Rules of Civil Procedure. ECF No. 270.
Witter argues that his death sentence is unconstitutional in
light of the Supreme Court's decision in Hurst v.
Florida, 136 S.Ct. 616 (2016).
Hurst, the Court held that Florida's capital
sentencing scheme violates the Sixth Amendment right to a
jury trial because, under the scheme, the jury renders an
advisory verdict but the judge makes the ultimate sentencing
determination. 136 S.Ct. at 624. In reaching that holding,
the Court relied upon Ring v. Arizona, 536 U.S. 584
(2002), which held that any fact necessary for the imposition
of the death penalty must be found by a jury, not a judge.
536 U.S. at 589.
a jury imposed the death penalty in Witter's case, he
claims that his death sentence is nonetheless
unconstitutional under Hurst because the jury was
not instructed that it must find beyond a reasonable doubt
that there are no mitigating circumstances sufficient to
outweigh the aggravating circumstances. Witter reasons that,
if the weighing of aggravating and mitigating factors is an
element that must be submitted to the jury as required by
Hurst, it necessarily follows that the reasonable
doubt standard imposed by the Fifth Amendment applies to the
weighing process. Witter also argues his death sentence is
unconstitutional under Hurst because the Nevada
Supreme Court upheld his sentence despite striking three
invalid aggravating circumstances. According to Witter, this
was impermissible because Hurst allows only a jury
determine the relative weight of aggravating and mitigating
arguments notwithstanding, this court is without jurisdiction
to rule upon a motion seeking relief from judgment while
Witter's case is on appeal to the Ninth Circuit. See
Williams v. Woodford, 384 F.3d 567, 586 (9th
Cir. 2004) (concluding that district court lacked
jurisdiction over petitioner's Rule 60(b) motion filed
subsequent to notice of appeal). When a case is on appeal, a
party may only “ask the district court for an
indication that it is willing to entertain a Rule 60(b)
motion. If the district court gives such an indication, then
the party should make a motion in the Court of Appeals for a
limited remand to allow the district court to rule on the
motion.” Sierra Pacific Industries v. Lyng,
866 F.2d 1099, 1113 n. 21 (9th Cir. 1989); see
also, Gould v. Mutual Life Insurance Co., 790
F.2d 769, 772 (9th Cir. 1986).
practice has been adopted by the Federal Rules of Civil
Procedure. Rule 62.1(a) states, “If a timely motion is
made for relief that the court lacks authority to grant
because of an appeal that has been docketed and is pending,
the court may: (1) defer considering the motion; (2) deny the
motion; or (3) state either that it would grant the motion if
the court of appeals remands for that purpose or that the
motion raises a substantial issue.” Cognizant of this
procedure, Witter asks this court to enter a ruling under the
third option, which is often referred to as an
“indicative ruling.” See Fed. Ct. App.
Manual § 15:12.5 (5th ed.).
60(b) applies to habeas proceedings, but only in conformity
with AEDPA,  including the limits on successive federal
petitions set forth at 28 U.S.C. § 2244(b). Gonzalez
v. Crosby, 545 U.S. 524, 529 (2005). If a Rule 60(b)
motion seeks to add a new ground for relief or attack this
court's previous resolution of a claim on the merits, it
is, in substance, a successive habeas petition subject to the
requirements of 28 U.S.C. § 2244(b). Id. at
531. If, however, the motion “attacks, not the
substance of the federal court's resolution of a claim on
the merits, but some defect in the integrity of the federal
habeas proceedings, ” the motion is not a successive
habeas petition. Id. at 532.
motion clearly falls in the former category. Accordingly,
this court is not permitted to address the merits of
Witter's Hurst-based claim until Witter obtains
authorization from the court of appeals pursuant to 28 U.S.C.
argues that his motion is not a successive petition because
his appeal of this court's final order is still pending.
He does not, however, cite to any controlling authority for
the proposition that the pendency of his appeal from the
denial of his first habeas petition excuses him from
obtaining permission from the court of appeals to raise his
new claim. While a Second Circuit case arguably supports
Witter's position (Whab v. United States, 408
F.3d 116 (2nd Cir. 2005)), opposing cases from
other circuits are more persuasive. See Ochoa v.
Sirmons, 485 F.3d 538, 541 (10th Cir. 2007)
(holding that no controlling authority “suggests that
whether a Rule 60(b) motion or other procedural vehicle may
be used to circumvent § 2244(b) depends on the
incidental fact that an appeal is or is not pending from the
underlying habeas proceeding”) and Phillips v.
United States, 668 F.3d 433, 435 (7th Cir.
2012) (“Nothing in the language of § 2244 or
§ 2255 suggests that time-and-number limits are
irrelevant as long as a prisoner keeps his initial request
alive through motions, appeals, and petitions.”).
also argues that, even if § 2244 does apply, he is still
entitled to relief because § 2244(b)(2)(A) permits him
to pursue a claim that “relies on a new rule of
constitutional law made retroactive to cases on collateral
review by the Supreme Court that was previously
unavailable.” That provisions does not, however,
provide a basis for this court to issue an indicative ruling
in Witter's favor. Setting aside the absence of a
decision from the Supreme Court making Hurst
retroactive,  the determination under §
2244(b)(2)(A) is to be made by the court of appeals, not this
court. See 28 U.S.C. § 2244(b)(3).
on the foregoing, this court must deny Witter's motion
for relief under Rule 60(b).
event Witter chooses to appeal this decision, this court
denies a certificate of appealability (COA).
to 28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner "has made a substantial showing of the denial
of a constitutional right." With respect to claims
rejected on the merits, a petitioner "must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000) (citing Barefoot v. Estelle, 463 U.S. 880,
893 & n.4 (1983)). For procedural rulings, a COA will
issue only if reasonable jurists could debate (1) whether the
petition states a valid claim of the denial of a
constitutional right and (2) whether the court's
procedural ruling was correct. Id.
issue of whether Witter's Rule 60(b) motion should be
treated as a successive petition under Gonzalez v.
Crosby is not debatable among reasonable jurists and,
therefore, does not warrant the issuance of a COA.
THEREFORE ORDERED that petitioner's motion for relief
from judgment pursuant to ...