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Bellon v. Neven

United States District Court, D. Nevada

September 19, 2017

ROBERT LINZY BELLON, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Court.

         This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's motion (ECF No. 44) for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

         Background

         The Court dismissed petitioner Robert Bellon's petition as untimely on August 19, 2014; and the Court of Appeals denied a certificate of appealability on February 9, 2015.

         On March 20, 2015, Bellon filed the instant motion contending that the March 10, 2015, intervening decision of the Ninth Circuit in Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015), cert. denied, 136 S.Ct. 1157 (2016), warranted vacating the judgment under Rule 60(b).

         Background as to the underlying timeliness issue is detailed in full in the Court's prior dismissal order, which also sets forth the governing law as to that issue. See ECF No.34.

         In broad summary, petitioner had until February 19, 2009, to file a timely state petition and, absent tolling or delayed accrual, until April 22, 2009, to file a timely federal petition. Bellon retained attorney Michael Schwartz in November 2007 to seek state but not federal post-conviction relief. Petitioner individually understood the importance of both state and federal limitations periods, and he provided counsel with a copy of a draft state petition that he had prepared.

         Schwarz ultimately missed the state filing deadline by one day, filing instead on February 20, 2009. The State raised an untimeliness defense on April 9, 2010; and petitioner was aware of the State's challenge to the timeliness of his state petition at that time.[1] On April 23, 2010, however, the state district court held from the bench that petitioner had cause to overcome the state time-bar, and the court ultimately reached the merits of all claims that could not have been raised previously on appeal. Thereafter, however, on April 11, 2012, the state supreme court held that petitioner had failed to overcome the untimeliness of the petition; and the court denied his rehearing petition challenging that holding on June 13, 2012.

         Petitioner filed a second state petition on July 18, 2012; and, while the second petition still was pending, he dispatched his federal petition on or about September 11, 2012. The second state petition subsequently was dismissed as, inter alia, untimely; and the state supreme court affirmed the denial of relief on, inter alia, that basis.

         Discussion

         Petitioner seeks relief under both Rule 60(b)(5) and (6).

         Rule 60(b)(5) does not provide a basis for relief in this circumstance. Rule 60(b)(5) provides that a final judgment may be set aside if “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 not longer equitable.” The judgment in this habeas case has not been “satisfied, released or discharged.” Nor was the judgment in this habeas case “based on an earlier judgment that has been reversed or vacated.”[2] Nor did the judgment order any prospective relief that might be subject to modification due to changed circumstances; it simply dismissed the petition as untimely. Petitioner provides no cogent argument or apposite supporting citation in any way suggesting that an intervening appellate decision from an unrelated case provides a basis for relief under Rule 60(b)(5). See generally C. Wright, A. Miller, M. Kane, et al., 11 Federal Practice & Procedure § 2863 (3d ed. 2017).

         Rule 60(b)(6), in contrast, sets forth a catch-all provision allowing for relief from judgment for "any other reason that justifies relief" under the governing jurisprudence. An intervening change in the law may establish, depending upon the circumstances of the case, a basis for post-judgment relief under Rule 60(b)(6). See, e.g., Phelps v. Alameida, 569 F.3d 1120, 1131-34 (9th Cir. 2009). There is no per se rule, however, one way or the other; and the issue turns on a case-by-case inquiry. See Id. A number of factors potentially may be involved, but there is no rigid and exhaustive list of factors that must be mechanically applied inexorably in each and every case. Id., at 1135 & 1140. Factors discussed previously in the jurisprudence instead serve merely as a guide. Id. In all events, however, “the exercise of a court's ample equitable power under Rule 60(b)(6) to reconsider its judgment ‘requires a showing of ‘extraordinary circumstances.'‘” Id. (quoting prior authority).

         Following review of the opinion on rehearing in Rudin, the Court concludes that the opinion would not have led to a different outcome in this case even if it had been issued prior to ...


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