United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court.
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
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.
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
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.
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
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. 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.
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.
seeks relief under both Rule 60(b)(5) and (6).
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.” 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).
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
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 ...