United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
closed pro se habeas petition pursuant to 28 U.S.C.
§ 2254 comes before the Court on petitioner's motion
for relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b)(6). (ECF No. 91). Respondents have opposed
(ECF No. 93), and petitioner has replied. (ECF No. 94). In
addition, petitioner has filed a “motion to exercise
supplemental jurisdiction.” (ECF No. 95).
initiated this habeas action in June 2009, and it was denied
on the merits on August 15, 2012. (ECF No. 71). On or after
September 24, 2012, petitioner filed a motion for certificate
of appealability and a notice of appeal with the Ninth
Circuit Court of Appeals. (ECF Nos. 73 & 77). The Court
denied petitioner's motion for certificate of
appealability. (ECF No. 75). Around the same time, petitioner
filed a motion for extension of time with the Ninth Circuit
Court of Appeals, which the Ninth Circuit construed as a
motion for extension of time to file a notice of appeal and
remanded for consideration by this Court. (ECF No. 77). In
his motion and reply, petitioner asserted that he was unable
to timely file his notice of appeal because his requests for
law library access had been denied. (See ECF No.
79). This Court denied the motion for extension of time,
holding that petitioner had failed to show either good cause
or excusable neglect. FRAP 4(a)(5). (ECF No. 80). The Ninth
Circuit agreed, and accordingly dismissed petitioner's
appeal for lack of jurisdiction. (ECF No. 83). Nearly six
years later, petitioner filed the instant motion for relief
pursuant to Federal Rule of Civil Procedure 60(b)(6).
petitioner may seek relief from a final judgment pursuant to
Federal Rule of Civil Procedure 60(b) under a limited set of
circumstances. See Gonzalez v. Crosby, 545 U.S. 524,
528 (2005)). However, “[h]abeas corpus petitions cannot
utilize a Rule 60(b) motion to make and end-run around the
requirements of the AEDPA or to otherwise circumvent that
statute's restrictions on second or successive habeas
corpus petitions.” Jones v. Ryan, 773 F.3d
825, 833 (9th Cir. 2013). A motion is a legitimate Rule 60(b)
motion if it attacks “some defect in the integrity of
the federal habeas proceedings.” Gonzalez, 545
U.S. at 532. If a motion asserts a new claim,
including a challenge to the court's determination on the
merits, the motion is not properly considered a Rule 60(b)
motion and instead should be treated as a second or
successive petition. Id. at 529-32.
Rule 60(b), “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding
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;
(6) any other reason that justifies relief.
60(b) motion must be made “within a reasonable
time.” Fed.R.Civ.P. 60(c)(1).
asserts relief pursuant to Rule 60(b)(6), arguing that he is
entitled to such due to “extraordinary
circumstances.” The extraordinary circumstances he
points to are those he alleged in a 2013 civil rights
complaint, in No. 2:13-cv-01492-RCJ-GWF. In that complaint,
petitioner asserted that he was denied law library access,
which prevented him from timely filing his notice of appeal
in this habeas action. The allegations petitioner asserts
ones that he could have raised, or in fact did raise, when
originally seeking an extension of time to appeal in 2012.
Petitioner appears to argue that he did not raise these
claims earlier in this action due to his ongoing litigation.
But nothing about petitioner's pending civil rights
complaint justifies waiting until January 2019 to file a
motion for Rule 60(b) relief in this case, particularly where
the civil rights proceedings were not resolved in
petitioner's favor and were dismissed for failure to
prosecute more than a year before petitioner filed his Rule
60(b) motion. The Court concludes that petitioner did not
file his Rule 60(b) motion within a “reasonable time,
” and the motion will therefore be denied on those
to petitioner's motion for this court to exercise
“supplemental jurisdiction, ” petitioner asks the
Court to adjudicate a habeas petition he has pending in state
court, which asserts that his good time credits have been
improperly calculated. Notwithstanding the fact that federal
courts typically abstain from intervention in ongoing state
proceedings pursuant to Younger v. Harris, 401 U.S.
37 (1971) and do not typically consider unexhausted claims,
such as those petitioner now asserts, the motion is an
improper attempt to reopen these closed proceedings and ...