United States District Court, D. Nevada
J. DAWSON CHIEF UNITED STATES DISTRICT JUDGE
case is - or, rather, was - a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, by Beau Ezekiel
Brown, a Nevada prisoner. Brown is serving two consecutive
sentences of life in prison, without the possibility of
parole, on a conviction of first degree murder with use of a
firearm. This Court appointed the Federal Public Defender for
the District of Nevada (FPD) as counsel for Brown (ECF Nos.
7, 10), and this action was litigated to its conclusion, on
Brown's behalf, by his counsel.
August 29, 2017, the Court denied Brown's amended habeas
petition and denied Brown a certificate of appealability, and
judgment was entered. See Order entered August 29,
2017 (ECF No. 58); Judgment (ECF No. 59). Brown appealed, and
sought a certificate of appealability in the Ninth Circuit
Court of Appeals. See Notice of Appeal (ECF No. 60).
The court of appeals denied Brown's request for a
certificate of appealability on January 31, 2018 (ECF No.
62). On February 22, 2018, the court of appeals granted the
FPD's motion to withdraw from their representation of
Brown, and granted Brown's pro se motion for an
extension of time to file a motion for reconsideration (ECF
No. 65). According to Brown, he filed a motion for
reconsideration in the court of appeals on March 26, 2018,
and that motion was denied on April 20, 2018. See
Motion to Reopen Case and Motion for Reconsideration (ECF
Nos. 66, 67), p. 3.
14, 2018, Brown filed, in this Court, a Motion to Reopen Case
and Motion for Reconsideration (ECF Nos. 66, 67). In his
motion, Brown asserts that there are three claims of
ineffective assistance of counsel that were not included in
his petition in this case, apparently, in his view, because
of inadvertence, oversight, mistake or neglect on the part of
his counsel; he characterizes those omitted claims as
- “Counsel's failure to authenticate the excerpt
video under NRS 52.015 Best Evidence Rule and object to
prosecutorial misconduct fell below the standard of
reasonable effective counsel.”
- “Counsel's ineffectiveness in her choice of
expert fell below the standard of reasonable effective
- “Counsel was ineffective for eliciting damaging
identification testimony from a State's witness that
undermined the theory of defense.”
to Reopen Case and Motion for Reconsideration (ECF Nos. 66,
67), pp. 5-6. As the Court understands Brown's motion, he
requests that this case be reopened and the judgment vacated,
such that those new claims may be added to his petition and
adjudicated. As such, Brown's motion is in the nature of
a motion for relief from judgment, pursuant to Federal Rule
of Civil Procedure 60(b).
60(b) applies in habeas corpus actions, but only in
conformity with the provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), including
the limits on successive federal petitions set forth at 28
U.S.C. § 2244(b). See Gonzalez v. Crosby, 545
U.S. 524, 529 (2005). If a Rule 60(b) motion seeks to add a
new ground for relief, it is, in substance, a successive
habeas petition subject to the requirements of section
2244(b). Id. at 531; see also United States v.
Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011)
(“[S]tate prisoner may not rely on Rule 60(b) to raise
a new claim in federal habeas proceedings that would
otherwise be barred as second or successive under §
generally limits a petitioner to one federal habeas corpus
action, and precludes a second or successive habeas petition
unless certain requirements are met. See Jones v.
Ryan, 733 F.3d 825, 834 (9th Cir. 2013); 28 U.S.C.
§ 2244(b). Before bringing a second or successive
petition in the district court, the petitioner is required to
obtain from the court of appeals “an order authorizing
the district court to consider the [second or successive
petition.]” See 28 U.S.C. §
is no “bright-line rule for distinguishing between a
bona fide Rule 60(b) motion and a disguised second or
successive [habeas petition].” Jones, 733 F.3d
at 834 (quoting United States v. Washington, 653
F.3d 1057, 1060 (2011)). However, in Gonzalez, the
Supreme Court provided guidance that is pertinent to the
motion before this Court. A Rule 60(b) motion is proper where
it “attacks ... some defect in the integrity of the
federal habeas proceedings, ” while a disguised
successive habeas petition is a filing that “contains
one or more claims, defined as asserted federal bas[e]s for
relief from a state court's judgment of
conviction.” Gonzalez, 545 U.S. at 530
(internal quotation marks omitted). The Gonzalez
Court specifically instructed that a Rule 60(b) motion is, in
substance, a successive petition, subject to section 2244(b),
if it asserts that, because of “excusable neglect,
” the prior federal petition omitted a claim of
constitutional error, and seeks leave to present that claim.
See Gonzalez, 545 U.S. at 531 (citing Harris v.
United States, 367 F.3d 74, 80-81 (2nd Cir. 2004) (Rule
60(b) motion sought relief from judgment because counsel
failed to raise a Sixth Amendment claim). That is the case
here. Brown contends that, on account of failures of his
counsel, three claims were left out of his petition, and he
moves for relief from the judgment so that he can present
motion is subject to the requirements of 28 U.S.C. §
2244(b). Brown makes no allegation, or showing, that he has
obtained, from the Ninth Circuit Court of Appeals, an order
authorizing a second or successive habeas petition.
IS THEREFORE ORDERED that petitioner's Motion to
Reopen Case (ECF No. 66) and Motion for ...