David Bollinger v. William Gittere

• Court: District Court, D. Nevada
• Decided: February 24, 2023
• Docket: 2:98-cv-01263
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DAVID BOLLINGER , Case No. 2:98-cv-01263-MMD-BNW

7 Petitioner, ORDER

8 v.

9 WILLIAM GITTERE, et al.,

10 Respondents.

11 12 I. SUMMARY 13 In this capital habeas corpus action, the Court denied Petitioner David Bollinger’s 14 habeas petition in 2015, and Bollinger appealed. On December 20, 2018, the Court of 15 Appeals remanded the case to this Court so that Bollinger could seek relief from the 16 judgment to assert a new claim, which he designated Claim 7D. The Court granted 17 Bollinger’s motion for relief from judgment and granted him leave to amend his petition to 18 assert Claim 7D. Then, following a stay of the action while Bollinger exhausted Claim 7D 19 in state court, denial of a motion to dismiss Claim 7D, and briefing of the merits of Claim 20 7D, Respondents filed a motion for reconsideration of the order granting Bollinger relief 21 from the judgment. Respondents argue that in retrospect, in light of the Court of Appeals’ 22 intervening decision in Balbuena v. Sullivan, 980 F.3d 619 (9th Cir. 2020), cert. denied 23 sub nom. Balbuena v. Cates, 141 S. Ct. 2755 (2021), the motion for relief from judgment 24 should have been treated as a successive petition under 28 U.S.C. § 2244(b) and denied 25 because Bollinger has never obtained authorization from the Court of Appeals to file such 26 a successive petition. Respondents argue that after Balbuena, under § 2244(b), this Court 27 1 Respondents’ motion for reconsideration is meritorious. Without jurisdiction to proceed, 2 the Court must grant Respondents’ motion, reinstate the March 15, 2015, judgment, and 3 vacate the order granting Bollinger leave to amend his petition to include Claim 7D. 4 II. BACKGROUND 5 This Court denied David Bollinger’s third amended petition for a writ of habeas 6 corpus in an order entered on March 5, 2015 (ECF No. 243), and judgment was entered 7 that same date (ECF No. 244). Bollinger appealed. (ECF No. 247.) 8 In August 2018, with the appeal still pending, Bollinger filed in this Court a motion 9 for leave to supplement his petition (ECF No. 256) along with the proposed supplement 10 setting forth Claim 7D (ECF No. 257), and then a motion for relief from judgment under 11 Federal Rule of Civil Procedure 60(b) (ECF No. 259). On December 13, 2018, the Court 12 denied those motions without prejudice to Bollinger renewing them if the action was 13 remanded. (ECF No. 269.) The Court included in that order an indicative ruling, under 14 Federal Rule of Civil Procedure 62.1, finding that Bollinger’s motion for relief from 15 judgment raised a substantial issue. (Id. at 3.) 16 On December 20, 2018, the Court of Appeals ordered a limited remand under 17 Federal Rule of Appellate Procedure 12.1(b), for this Court to consider Bollinger’s motion 18 for relief from judgment. (Docket Entry No. 61 in Ninth Circuit Court of Appeals Case No. 19 15-99007.) Bollinger then renewed his motion for relief from judgment under Rule 60(b) 20 and his motion for leave to supplement his petition (ECF Nos. 270, 271), and on June 17, 21 2019, the Court granted those motions, vacated the judgment, and granted Bollinger 22 leave of court to amend his petition to include Claim 7D. (ECF No. 279.) 23 On September 10, 2019, the Court stayed this action pending completion of state- 24 court proceedings in which Bollinger sought to exhaust Claim 7D in state court. (ECF No. 25 285.) After completion of the state-court proceedings, the stay was lifted in an order 26 entered on April 1, 2020. (ECF No. 292.) 27 2 1 On June 29, 2020, Respondents filed a motion to dismiss Claim 7D (ECF No. 293), 2 arguing that the claim is procedurally defaulted. On March 2, 2021, finding the procedural 3 default issue to be intertwined with the merits of the claim, the Court denied the motion to 4 dismiss without prejudice to Respondents asserting the procedural default defense in 5 their answer to Claim 7D. (ECF No. 298.) 6 Respondents filed a supplemental answer, responding to Claim 7D, on August 31, 7 2021. (ECF No. 309.) Bollinger filed a reply (ECF No. 310), and Respondents filed a 8 response to the reply. (ECF No. 320.) Then, in the wake of the Supreme Court’s decision 9 in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the parties amended their merits briefing 10 regarding Claim 7D to incorporate their positions regarding the effects of Ramirez. (ECF 11 Nos. 323, 327, 332.) 12 Shortly after the parties completed the merits briefing, Respondents filed their 13 motion for reconsideration on January 13, 2023, requesting reconsideration of the Court’s 14 order granting the motion for relief from judgment. (ECF No. 333.) Respondents’ motion 15 is based on the Court of Appeals’ decision in Balbuena, which was issued on August 17, 16 2020, and amended on November 17, 2020. See Balbuena, 980 F.3d at 619, 624. In 17 Balbuena, the Court of Appeals held that a motion for relief from judgment, under Rule 18 60(b), made during the appeal from a denial of a habeas petition, asserting a claim for 19 habeas corpus relief, is to be treated as a successive petition under 28 U.S.C. § 2244(b). 20 Id. at 639-42. Respondents argue that now, after Balbuena, Bollinger’s motion for relief 21 from judgment to assert Claim 7D should have been treated as a successive petition 22 under § 2244(b) and denied, because Bollinger has never obtained authorization from the 23 Court of Appeals, and this Court is without jurisdiction to proceed. Bollinger filed an 24 opposition to the motion for reconsideration on January 27, 2023. (ECF No. 334.) 25 Respondents filed a reply on February 2, 2023. (ECF No. 335.) 26 /// 27 3 1 III. DISCUSSION 2 Under 28 U.S.C. § 2244(b), before a habeas petitioner may file a second or 3 successive petition in a district court, the petitioner must obtain authorization to do so 4 from the Court of Appeals. Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Section 5 2244(b) “creates a ‘gatekeeping’ mechanism for the consideration of second or 6 successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996). A 7 district court lacks jurisdiction to consider the merits of a successive habeas petition in 8 the absence of authorization from the Court of Appeals. Cooper v. Calderon, 274 F.3d 9 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 10 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003); see also Balbuena, 980 F.3d at 635. 11 The Court of Appeals may authorize a second or successive petition under § 2244(b), if 12 it determines that the petitioner makes a prima facia showing: (1) that the claim relies on 13 a new rule of constitutional law, made retroactive to cases on collateral review by the 14 Supreme Court; or (2) that the factual predicate for the claim could not have been 15 discovered previously through the exercise of due diligence and the facts underlying the 16 claim would be sufficient to establish that, but for constitutional errors, no reasonable 17 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 18 2244(b). 19 In his motion for relief from judgment, Bollinger asserted that his motion should not 20 be treated as a successive petition under § 2244(b), in part because his “appeal from this 21 Court’s denial of his initial federal petition remain[ed] pending.” (ECF No. 270.) 22 Respondents did not respond to that assertion. (ECF Nos. 273, 274.) Respondents did 23 not at that time take the position that the motion should be treated as a successive petition 24 under § 2244(b). (Id.) That is not surprising, however, given that Balbuena had not then 25 been decided. Balbuena was decided more than a year after Bollinger’s motion for relief 26 from judgment was briefed and addressed by the Court. 27 4 1 Bollinger complains that Respondents took more than two years after the Court of 2 Appeals’ decision in Balbuena to raise the issue of the application of § 2244(b) under the 3 Court of Appeals’ holding in that case. But that delay too is unsurprising. When Balbuena 4 was decided, Bollinger’s motion for relief from judgment had long been resolved, and the 5 parties had moved on to briefing Respondents’ motion to dismiss Claim 7D and to their 6 briefing of that claim on its merits. And, at any rate, it is undisputed that Respondents’ 7 motion for reconsideration raises a jurisdictional issue. See Balbuena, 980 F.3d at 635; 8 Cooper, 274 F.3d at 1274. The timing of Respondents’ motion for reconsideration is not 9 determinative. If the Court is without jurisdiction to adjudicate Claim 7D, the motion for 10 reconsideration must be granted and the judgment reinstated. 11 In response to the motion for reconsideration, Bollinger makes several arguments 12 to the effect that, because of the nature of his motion for relief from the judgment, it should 13 not be treated as a successive petition under § 2244(b), and Balbuena therefore has not 14 left the Court without jurisdiction. 15 Bollinger primarily argues that Claim 7D is the same claim as Claim 7C of his third 16 amended habeas petition (ECF No. 168 at 127-34), which was dismissed on procedural 17 default grounds, only with newly discovered evidence supporting it and with a slightly 18 different focus; therefore, he argues, § 2244(b) does not apply. (ECF No. 334; ECF No. 19 232 (order dismissing Claim 7C and other claims as procedurally defaulted).) 20 In Claim 7D, Bollinger claims that his federal constitutional rights were violated 21 because of judicial bias on the part of the trial judge. (ECF No. 257.) Specifically, in Claim 22 7D, Bollinger alleges that throughout his trial, the trial judge was the subject of a criminal 23 investigation; the Washoe County District Attorney (“WCDA”) was partly responsible for 24 prompting, and actively participated in, the investigation; the trial judge knew of the 25 WCDA’s part in the investigation; the trial judge attempted to influence the testimony of a 26 WCDA employee with respect to the investigation; and the investigation, and the trial 27 5 1 judge’s knowledge of it and actions with respect to it, gave rise to a risk of bias in 2 Bollinger’s case that was too high to be constitutionally tolerable. (Id.) Contrary to 3 Bollinger’s argument, Claim 7D is not the same claim as Claim 7C. A comparison of 4 Bollinger’s pleading of Claim 7C and his pleading of Claim 7D reveals substantial 5 differences between the two claims. Claim 7C was a claim of judicial bias based on the 6 trial judge’s alleged bias caused by “intense media scrutiny related to an ethics inquiry.” 7 (ECF No. 168 at 127-34). Claim 7D, on the other hand, is a claim of judicial bias based 8 on the trial judge’s alleged bias caused by “participation by the prosecuting agency in an 9 investigation of the trial judge.” (ECF No. 257.) 10 It is only in response to the motion for reconsideration that Bollinger has taken the 11 untenable position that Claims 7D and 7C are the same claim. In arguing in support of his 12 motion for relief from judgment and his motion for leave to amend his petition, Bollinger 13 repeatedly referred to Claim 7D as a new claim. (See, e.g., ECF No. 271 at 3 (“a more 14 substantial claim of judicial bias”); ECF No. 271 at 13 (“Mr. Bollinger has not previously 15 attempted to supplement his petition with this claim, nor could he. Until the November 16 2017 evidentiary hearing, the basis for this claim was not reasonably available.”); ECF 17 No. 276 at 2 (“[T]he state confuses Mr. Bollinger’s new claim with his old one….”); ECF 18 No. 276 at 4, n.1 (“new claim”); ECF No. 276 at 6 (“In any event, the facts underlying Mr. 19 Bollinger’s proposed new claim were not reasonably available until the evidentiary 20 hearing in November 2017.”); ECF No. 277 at 3 (“Mr. Bollinger’s current claim is different 21 and based on newly discovered facts.”); ECF No. 277 at 5, 8 (“new claim”).) 22 The Court finds that Claim 7D is a new claim, different from Claim 7C of Bollinger’s 23 third amended petition; it is based on different evidence, and it asserts a substantially 24 different theory of judicial bias. 25 26 27 6 1 The Court also finds without merit Bollinger’s argument that because Claim 7C— 2 which, again, Bollinger characterizes as the same as Claim 7D—was dismissed on 3 procedural default grounds, § 2244(b) does not apply. 4 It is well established in this circuit that where a habeas petition has been dismissed 5 on the ground of procedural default, the dismissal constitutes a disposition on the merits 6 and renders a subsequent petition successive under 28 U.S.C. § 2244(b). The Ninth 7 Circuit Court of Appeals ruled squarely on this issue in Henderson v. Lampert, 396 F.3d 8 1049, 1053 (9th Cir. 2005). The court explained that it “joined the Second Circuit in holding 9 that “a denial on grounds of procedural default constitutes a disposition on the merits and 10 thus renders a subsequent § 2254 petition or § 2255 motion ‘second or successive’ for 11 purposes of the AEDPA.” Id. at 1052-53. The Ninth Circuit Court of Appeals reaffirmed 12 this rule some four years later in McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) 13 (a case cited by Bollinger in his response to the motion for reconsideration). Since then, 14 district courts in the circuit have repeatedly applied this rule. See, e.g., Howard v. Moore, 15 2022 WL. 5249386 at *3 (C.D. Cal. 2022); Booth v. Gastelo, 2021 WL 3022413 at *1 (S.D. 16 Cal. 2021); Labert v. Long, 2021 WL 949430 at *2 (E.D. Cal. 2021); Bell v. Williams, 2019 17 WL 11693408 at *1 (D. Nev. 2019); Roach v. Washington, 2018 WL 2291407 at *1 (W.D. 18 Wash. 2018); Scott v. Ryan, 2015 WL 13734995 at *11 (D. Ariz. 2015); Norra v. Foulk, 19 2014 WL 1996002 at *1 (N.D. Cal. 2014); Grimaldi v. Williams, 2011 WL 6002933 at *1 20 (D. Nev. 2011); Butcher v. Nooth, 2010 WL 4962926 at *1 (D. Or. 2010). 21 Notwithstanding this precedent, Bollinger argues:

22 . . . Balbuena reaffirms that “a movant does not make a habeas corpus claim, and therefore does not file a successive petition, ‘when he 23 merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as 24 failure to exhaust, procedural default, or statute-of-limitations bar.’” Balbuena, 980 F.3d at 635 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 25 n.4 (2005) (emphasis added). The Ninth Circuit has long held that a petition “is second or successive only if it raises claims that were or could have been 26 adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1028 (9th Cir. 27 7 2009). But Bollinger’s judicial bias claim was never adjudicated on the 1 merits—either by this Court or the Nevada state courts. Because this Court rejected Bollinger’s judicial-bias claim on grounds of procedural default, it 2 did not adjudicate the claim on the merits. See Gonzalez, 545 U.S. at 532 n.4; see also Pizzuto v. Ramirez, 783 F.3d 1171, 1176 (9th Cir. 2015); Cook 3 v. Ryan, 688 F.3d 598, 608 (9th Cir. 2012). 4 (ECF No. 334 at 4 (emphasis in original).) 5 In Balbuena, the petitioner—like Bollinger in this case—asserted a new claim for 6 habeas corpus relief in his motion for relief from judgment. See Balbuena, 980 F.3d at 7 636-37 (“Here, like the petitioner in [Beaty v. Schiro, 554 F.3d 780 (9th Cir. 2009)], 8 Balbuena sought to add a new claim after the district court denied his petition and he 9 appealed that denial.”). Therefore, the exceptions to the application of § 2244(b) 10 mentioned in Gonzalez v. Crosby, 545 U.S. 524 (2005), did not apply in Balbuena, as 11 they do not apply in this case. 12 In Gonzalez, on the other hand, unlike in this case and unlike in Balbuena, the 13 petitioner’s motion for relief from judgment did not assert a new claim, and it was not 14 treated as a successive petition for that reason. See Gonzalez, 545 U.S. at 533. Gonzalez 15 clearly instructed that a motion for relief from judgment asserting a claim—whether a new 16 claim or a claim already adjudicated but supported by new evidence—is to be treated as 17 a successive petition under § 2244(b). Id. at 530-32. That is the case here. Bollinger’s 18 motion for relief from judgment asserted a new claim—or, in Bollinger’s view, new 19 evidence in support of a claim previously adjudicated. Section 2244(b) applies, and under 20 Balbuena it applies even though the motion for relief from judgment was made during 21 Bollinger’s appeal. 22 Further attempting to distance his motion for relief from judgment from the 23 requirements of § 2244(b), Bollinger argues:

24 Balbuena makes clear that “[a] Rule 60(b) motion is not a subsequent habeas petition when it ‘attacks, not the substance of the federal court’s 25 resolution of a claim on the merits, but some defect in the integrity of the habeas proceedings.’” 980 F. 3d at 639 (quoting Gonzalez, 545 U.S. at 26 533). Here, Bollinger is attacking a defect in the integrity of the habeas proceeding. He was never given an evidentiary hearing in either state [or] 27 8 federal court until 2017. At the state hearing in 2017 he developed new 1 evidence supporting both a claim in his petition that was dismissed as procedurally defaulted and evidence that allowed him to overcome that 2 default, and he promptly returned to federal court arguing that the previous dismissal of the judicial bias claim as procedurally defaulted was in error 3 based on the new evidence: namely, that his first state post-conviction counsel failed to raise a claim of judicial bias because he was counsel of 4 record for the judge against whom the bias allegations would need to be raised, and actively participated with the judge in attempting to influence the 5 testimony of a federal grand jury witness who also happened to work for the Washoe County District Attorney’s Office. As such, Bollinger’s 60(b) motion 6 should not be treated like a habeas petition. 7 (ECF No. 334 at 5.) The Gonzalez Court explained that a new claim is not asserted “when 8 a Rule 60(b) motion attacks, not the substance of the federal court’s resolution of a claim 9 on the merits, but some defect in the integrity of the federal habeas proceedings.” 10 Gonzalez, 545 U.S. at 532. In a footnote, the Court offered fraud on the federal habeas 11 court as an example of the meaning of the phrase “defect in the integrity of the federal 12 habeas proceedings.” Id. at 532 n.5. The Court went on to explain what is not such a 13 “defect”: “[A]n attack based on the movant’s own conduct, or his habeas counsel’s 14 omissions [. . .] ordinarily does not go to the integrity of the proceedings, but in effect asks 15 for a second chance to have the merits determined favorably.” Id. 16 In this case, as is discussed above, it is beyond dispute that in his motion for relief 17 from judgment Bollinger sought to advance a claim—in this Court’s view a new claim. See 18 supra, at 5-6. In his motion for relief from judgment, Bollinger did not claim that there was 19 a “defect” in the adjudication of his habeas petition. (ECF No. 270.) The gist of Bollinger’s 20 motion for relief from judgment was that he had discovered new evidence supporting a 21 new claim for relief. (Id.) 22 Bollinger’s argument that there was a “defect” in the adjudication of Bollinger’s prior 23 Claim 7C is a new argument, appearing only now, in response to Respondents’ motion 24 for reconsideration. In opposing Respondents’ motion to dismiss in 2013 (ECF No. 215), 25 which motion resulted in dismissal of Claim 7C as procedurally defaulted, Bollinger did 26 not request discovery or an evidentiary hearing concerning the procedural default of 27 9 1 Claim 7C, despite the scheduling order specifically providing for such motions. (ECF No. 2 154 (scheduling order).) Nor did Bollinger seek reconsideration of either the order 3 dismissing Claim 7C as procedurally defaulted (ECF No. 232) or the order denying his 4 habeas petition (ECF No. 243) on the ground of denial of discovery or an evidentiary 5 hearing with respect to the procedural default of Claim 7C. And it appears that Bollinger 6 has not raised on appeal any issue regarding any request for discovery or an evidentiary 7 hearing regarding the procedural default of Claim 7C. (Docket Entry No. 61 in Ninth Circuit 8 Court of Appeals Case No. 15-99007 (Appellant’s Revised Opening Brief).) 9 In short, there was no “defect” in the proceedings in this action with respect to the 10 adjudication of Claim 7C, as the term was used in Gonzalez, and Bollinger’s motion for 11 relief from judgment did not claim that there was. Rather, Bollinger’s motion for relief from 12 judgment advanced a new claim for habeas corpus relief based on alleged newly 13 discovered evidence. Section 2244(b) applies. See Jones v. Ryan, 733 F.3d 825, 833-38 14 (9th Cir. 2013) (“Gonzalez held that a legitimate Rule 60(b) motion ‘attacks . . . some 15 defect in the integrity of the federal habeas proceedings,’ while a second or successive 16 habeas corpus petition ‘is a filing that contains one or more “claims,”’ defined as ‘asserted 17 federal bas[e]s for relief from a state court’s judgment of conviction.’” (733 F.3d at 834 18 (quoting Gonzalez, 545 U.S. at 530, 532)).). 19 Federal district courts have inherent authority to reconsider interlocutory rulings at 20 any time. See, e.g., City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 21 F.3d 882, 887 (9th Cir. 2001). Reconsideration of an interlocutory order “may be 22 appropriate if (1) there is newly discovered evidence that was not available when the 23 original motion or response was filed, (2) the court committed clear error or the initial 24 decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” 25 LR 59-1. 26 27 10 1 Here, Balbuena is intervening case law, holding that 28 U.S.C. § 2244(b) applies 2 to a motion for relief from judgment made during an appeal in a habeas action if it asserts 3 a claim for habeas corpus relief. Now, under Balbuena, in the absence of authorization 4 from the Court of Appeals, this Court is without jurisdiction to adjudicate Bollinger’s Claim 5 7D. The Court must, therefore, grant Respondents’ motion for reconsideration, vacate the 6 order granting Petitioner’s motion for relief from judgment, reinstate the March 5, 2015, 7 judgment, and vacate the order granting Petitioner leave to amend his petition to include 8 Claim 7D in his third amended habeas petition. 9 A certificate of appealability will be denied with respect to this ruling because jurists 10 of reason would not find it debatable whether this ruling is correct. See Slack v. McDaniel, 11 529 U.S. 473, 484 (2000). 12 IV. CONCLUSION 13 It is therefore ordered that Respondents’ Motion for Reconsideration (ECF No. 14 333) is granted. 15 It is further ordered that the order granting Petitioner’s motion for relief from 16 judgment (ECF No. 279) is vacated. The judgment entered in this action on March 5, 2015 17 (ECF No. 244) is reinstated. 18 It is further ordered that the order granting Petitioner leave to amend his petition to 19 include Claim 7D (ECF No. 279) is vacated. Petitioner’s Third Amended Petition for Writ 20 of Habeas Corpus (ECF No. 168) will no longer be treated as amended to include Claim 21 7D, which is set forth in Petitioner’s Supplement to Petition for Writ of Habeas Corpus 22 (ECF No. 257). 23 It is further ordered that Petitioner is denied a certificate of appealability relative to 24 the ruling in this order. 25 26 27 11 1 It is further ordered that, under Federal Rule of Civil Procedure 25(d), William 2 || Gittere is substituted for William Reubart as the respondent warden. The Clerk of Court 3 || is directed to update the docket to reflect this change. 4 It is further ordered that the Clerk of Court is directed to transmit a copy of this 5 || order to the Ninth Circuit Court of Appeals, with reference to Case No. 15-99007 in that 6 |} court. 7 DATED THIS 24" Day of February 2023.

9 MIRANDAM.DU- □□□□□□□□□□□□□□□□□□□□□□□□ 40 CHIEF UNITED STATES DISTRICT JUDGE

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