1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Frank M. Peck, Case No: 2:17-cv-01620-JAD-MDC
4 Petitioner Order Denying Motion to Withdraw as Attorney; Granting Motion for Extension 5 v. of Time; and Denying Remaining Motions
6 Terry Royal, et al., [ECF Nos. 168; 169; 170; 171; 175; 178]
7 Respondents
8 In this closed habeas corpus proceeding brought under 28 U.S.C. § 2254, Petitioner Frank 9 M. Peck’s former appointed counsel has filed a motion to withdraw as counsel.1 Peck filed pro 10 se motions for recusal of judge;2 to correct errors of law, fact and fraud under Fed. R. Civ. P. 11 60(b) (“Rule 60(b) motions”);3 and for enlargement of time to file a reply in support of the Rule 12 60(b) motions.4 The respondents filed a response to Peck’s Rule 60(b) motions.5 For the 13 reasons explained below, I deny as moot the motion to withdraw as counsel; grant Peck’s pro se 14 motion for enlargement of time; deny Peck’s pro se motions for recusal; dismiss Peck’s Rule 15 60(b) motions for lack of jurisdiction because they constitute second or successive petitions; 16 refer his second or successive petitions to the Ninth Circuit Court of Appeals under Ninth Circuit 17 Rule 22-3(a); and deny a certificate of appealability. 18 19 20
21 1 ECF No. 171. 2 ECF Nos. 168, 175. 22 3 ECF Nos. 169, 170. 23 4 ECF No. 178. 5 ECF No. 176. 1 Background 2 In 2006, a grand jury indicted Peck for a 1994 sexual assault.6 A jury convicted Peck in 3 2009, and he was sentenced to life with the possibility of parole after five years, consecutive to 4 his sentence in a 1996 case.7 Peck unsuccessfully sought review in state-court proceedings.8
5 In June 2017, Peck filed a pro se federal habeas petition.9 Appointed counsel filed a third 6 amended petition.10 This court dismissed the petition in part, denied it on the merits in part, 7 denied a certificate of appealability, and entered judgment.11 8 Peck timely appealed.12 With counsel’s assistance, Peck sought a certificate of 9 appealability from the Ninth Circuit Court of Appeals, arguing that reasonable jurists could 10 debate whether my rulings denying Grounds 1-4 and 6 of the petition are correct.13 The Ninth 11 Circuit denied the request, ruling that Peck “had not shown that ‘jurists of reason would find it 12 debatable whether the petition states a valid claim of the denial of a constitutional right and that 13 jurists of reason would find it debatable whether the district court was correct in its procedural 14 ruling.’”14 On Peck’s behalf, counsel moved for an extension of time to allow Peck to file pro se
15 motions asking the Ninth Circuit to reconsider the denial of a certificate of appealability.15 16
17 6 ECF No. 105-7. 18 7 ECF Nos. 107-32, 108-15. 8 ECF Nos. 108-50, 115-20. 19 9 ECF Nos. 1-1, 6. 20 10 ECF No. 97. 21 11 ECF Nos. 128, 160, 161. 12 ECF Nos. 161, 164. 22 13 See Peck v. Royal, et al., No. 25-4018 at ECF No. 4. 23 14 Id. at ECF No. 7. 15 Id. at ECF Nos. 8, 10. 1 Peck’s counsel also moved to withdraw as his counsel.16 The Ninth Circuit granted counsel’s 2 motion to withdraw, ruled that Peck “is proceeding without counsel,” deemed Peck’s pro se 3 motion for reconsideration timely filed, and then denied it.17 4 Peck returned to this court with pro se motions for my recusal, motions under Federal
5 Rule of Civil Procedure (FRCP) 60(b), and a motion for enlargement of time to file his reply 6 brief in support of his Rule 60(b) motions.18 His prior counsel filed a motion to withdraw as 7 attorney of record.19 8 Discussion 9 A. The motion to withdraw as counsel is moot. 10 Peck’s counsel Amelia L. Pizzaro, Esq. moves to withdraw, explaining that the 11 conclusion of the Ninth Circuit case means that her representation is complete.20 Peck contends 12 Pizzaro was already allowed to withdraw and that it is his understanding that he is now 13 proceeding pro se.21 I find that Peck’s counsel was already permitted to withdraw and that Peck 14 is proceeding pro se.22 So I deny as moot counsel’s motion to withdraw as counsel.23 Pizzaro’s
15 representation of Peck is terminated. 16 17 18
16 Id. at ECF No. at 9. 19 17 Id. at 11. 20 18 ECF Nos. 168, 169, 170, 175, 178. 21 19 ECF No. 171. 20 Id. at 2. 22 21 ECF No. 179 at 9. 23 22 See Peck v. Royal, et al., No. 25-4018, ECF No. 11. 23 ECF No. 171. 1 B. The motion for recusal is untimely and without merit. 2 Eight months after I entered judgment in and closed this case, Peck filed a motion for my 3 recusal under 28 U.S.C. §§ 144, 455.24 The respondents filed no response to the motions and the 4 time to do so expired, so Peck followed up with a request for a ruling on that recusal motion.25
5 Peck supports his motion with an affidavit alleging four areas of bias.26 6 Motions for recusal are governed by 28 U.S.C. §§ 144 and 455. While section 7 144 “provides a procedure for a party to recuse a judge,” “[s]ection 455 imposes an affirmative 8 duty upon judges to recuse themselves.”27 A recusal motion must be filed “with reasonable 9 promptness after the ground for such a motion is ascertained.”28 If a party files a timely and 10 sufficient affidavit that the judge before whom the matter is pending has a personal bias or 11 prejudice either against him or in favor of any adverse party, such judge shall proceed no further 12 therein, but another judge shall be assigned to hear such proceeding.”29 13 Under § 144 and § 455, recusal of a federal judge is appropriate if “a reasonable person 14 with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be
15 questioned.”30 “The ‘reasonable person’ in this context means a ‘well-informed, thoughtful 16 observer,’ as opposed to a ‘hypersensitive or unduly suspicious person.’”31 “[J]udicial rulings 17
24 ECF No. 168. 18 25 ECF No. 175. 19 26 ECF No. 168. 20 27 Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993). 28 Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991). 21 29 28 U.S.C. § 144. 22 30 Yagman, 987 F.2d at 626 (quoting Matter of Yagman, 796 F.2d 1165, 1179 (9th Cir. 1986) (applying 28 U.S.C. § 455)). 23 31 Clemens v. U.S. Dist. Ct. for Cent. Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005) (citation omitted). 1 alone almost never constitute a valid basis for a bias or impartiality motion” and “[a]lmost 2 invariably, they are proper grounds for appeal, not recusal.”32 “[O]pinions formed by the judge 3 on the basis of facts introduced or events occurring in the course of the current proceedings, or of 4 prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a
5 deep-seated favoritism or antagonism that would make fair judgment impossible.”33 6 Peck contends I must recuse myself for bias and prejudice because an actual conflict 7 exists due to a case he filed against me34 in this district.35 That case was dismissed on February 8 27, 2020.36 Peck alleges that, “by all appearances,” I personally issued the order dismissing the 9 case against me.37 He cites the following passage from the order dismissing that case, as 10 evidence to support his argument: “A judge will not be deprived of immunity because the action 11 [she] took was in error.”38 He claims the change of pronoun was “a female act,” and Judge 12 Stanley Bastian, whose signature is affixed to the order dismissing the case,39 was unlikely to 13 change the sexual connotation of “he” to “she.”40 Peck also theorizes that, as a female, I hold 14 unfair conscious and unconscious bias and preconceived notions about his habeas case because it
15 16 17 32 Liteky v. United States, 510 U.S. 540, 555 (1994). 18 33 Id. 19 34 Case No. 2:19-cv-1023-SAB. 35 ECF No. 168 at 2. 20 36 See Case No. 2:19-cv-1023-SAB at ECF No. 41. 21 37 ECF No. 168 at 2. 22 38 Id. 39 See Case No. 2:19-cv-1023-SAB at ECF No. 41. Judge Bastian sits in the Eastern District of 23 Washington. 40 Id. 1 involves his conviction for sexual assault.41 And he claims that my unfavorable rulings show my 2 bias. 3 This request for recusal is patently untimely. Peck knew about the dismissal order in the 4 case he filed against me for five full years before he filed the instant motion for recusal.42 It is
5 also public knowledge that I am a female judge, and I have presided over his habeas case since 6 2017.43 And to the extent that he claims my rulings evidence my bias, he has known about those 7 rulings since I closed this case in June 2025. Thus, this motion was not made with reasonable 8 promptness after the allegations were ascertained,44 and it should be denied on that basis alone. 9 Peck’s recusal theories are also without merit. Peck’s case against me was assigned to a 10 judge far outside of this district. And it is reasonable to conclude that Judge Bastian changed the 11 connation from “he” to “she” because Peck’s allegations were against me and I am a female 12 judge. Because no reasonable person with knowledge of all the facts would conclude my 13 impartiality might reasonably be questioned based on the existence of or dismissal of that case, 14 Peck’s allegations are insufficient to warrant recusal.45
15 Nor does Peck present any basis to conclude that, because I am a woman, I am somehow 16 biased against him or any petitioner convicted of sexual assault. Peck’s argument overlooks that 17 not all sexual assault victims are female. No reasonable person with knowledge of all the facts 18 19 20
21 41 ECF No. 168 at 3. 42 See Case No. 2:19-cv-1023-SAB at ECF No. 41. 22 43 ECF No. 7. 23 44 See Preston, 923 F.2d at 733. 45 See Yagman, 987 F.2d at 626. 1 would conclude my impartiality might reasonably be questioned because I am a female, and his 2 case involves sexual assault.46 3 The rest of Peck’s recusal theories target my rulings. Peck alleges I am clearly biased 4 and have not shown him any fairness whatsoever in this case because I intentionally ignored
5 “flagrant prosecutorial misconduct,” “ignored the fact that respondents totally failed to raise the 6 affirmative defense of procedural default,” and mischaracterized as human DNA the PCR 7 (polymerase chain reaction-short tandem repeat (PCR-STR) method of testing DNA evidence 8 used to argue Peck’s DNA profile matched the DNA profile found inside the victim.47 He 9 suggests that my denial of a certificate of appealability also evidences a conflict or prejudice.48 10 Peck’s disagreement with my rulings is no basis for recusal. As the United States 11 Supreme Court explained in Liteky v. United States, “judicial rulings” are no basis for recusal.49 12 “The alleged prejudice must result from an extrajudicial source; a judge’s prior adverse ruling is 13 not sufficient cause for recusal.”50 “Unfavorable rulings alone are legally insufficient to require 14 recusal, even when the number of such unfavorable rulings is extraordinarily high on a statistical
15 basis.”51 The proper vehicle for challenging legal rulings that a litigant perceives as error is an 16 17
18 46 See Yagman, 987 F.2d at 626. 19 47 ECF No. 168 at 2. 48 Id. at 4. 20 49 Liteky v. United States, 510 U.S. 540, 555 (1994); see also Matter of Beverly Hills Bancorp, 21 752 F.2d 1334, 1341 (9th Cir. 1984) (recognizing that “[u]nfavorable rulings alone are legally insufficient to require recusal, even when the number of such unfavorable rulings is 22 extraordinarily high on a statistical basis”) (citations omitted). 50 United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). 23 51 Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984) (citing Botts v. United States, 413 F.2d 41, 44 (9th Cir. 1969)). 1 appeal, not disqualification.52 And Peck had the opportunity to air his grievances about my 2 rulings in the Ninth Circuit, where he was afforded more than one opportunity to seek a 3 certificate of appealability.53 So I deny Peck’s motions seeking my recusal. 4 C. The motion for an enlargement of time to file a reply brief is granted.
5 Peck filed a motion for enlargement of time (first request) to file his reply in support of 6 his Rule 60(b) motions.54 I find the request is made in good faith and not solely for the purpose 7 of delay, and therefore good cause exists to grant the motion.55 I thus consider timely Peck’s pro 8 se reply.56 9 D. Peck’s motions under Fed. R. Civ. P. 60(b) are second or successive petitions, and 10 the law requires this court to dismiss them.
11 Peck’s two motions to correct errors of law, errors of fact, and fraud, are brought under 12 Fed. R. Civ. P. 60(b).57 The respondents filed an opposition, arguing that Peck fails to establish 13 circumstances that justify relief (like fraud, extraordinary circumstances, or manifest injustice), 14 and Peck reiterates arguments raised before this court in his third amended petition and reply.58 I 15 deny these Rule 60(b) motions because they contain argument attacking my previous resolution 16 17
18 52 F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1145 (9th Cir. 2001) (noting that “[j]udges are known to make procedural and even substantive errors on occasion” 19 and holding that perceived erroneous ruling “would be the basis for appeal, not recusal”). 53 See Peck v. Royal, et al., No. 25-4018 at ECF Nos. 4, 7, 10, 11. 20 54 ECF No. 178. 21 55 Fed. R. Civ. P. 6(b); LR IA 6-1. 22 56 ECF No. 179. 57 ECF Nos. 169, 170. These motions appear to be identical. For brevity, I refer only to ECF 23 No. 169. 58 ECF No. 176 at 2–4. 1 of his claims on the merits and allege new grounds for relief, and he has not obtained a certificate 2 from the Ninth Circuit authorizing the filing of a second or successive habeas petition.59 3 Under Federal Rule of Civil Procedure 60(b), a court generally may relieve a party from a 4 final judgment or order for six reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
5 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in 6 time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or 7 extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) 8 the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that 9 has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other 10 reason that justifies relief.60 A motion under Rule 60(b) must “be made within a reasonable 11 time” and “[a] movant seeking relief under Rule 60(b)(6) must show “‘extraordinary 12 circumstances’ justifying the reopening of a final judgment.”61 13 “Such circumstances will rarely occur in the habeas context,”62 and Rule 60(b) applies to 14 federal habeas proceedings “only to the extent that [it is] not inconsistent with applicable federal
15 statutory provisions and rules” such as the AEDPA.63 “Habeas corpus petitions cannot ‘utilize a 16 17 18 19 59 See Banister v. Davis, 590 U.S. 504, 517–18 (2020) (citing Gonzalez v. Crosby, 545 U.S. 524, 20 532 (2005)). 60 Fed. R. Civ. P. 60(b). 21 61 See Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 22 (1950)). 62 Id. 23 63 See Jones v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013) (internal brackets and ellipsis omitted) (quoting Gonzalez, 545 U.S. at 529). 1 Rule 60(b) motion to make an end-run around the requirements of AEDPA’ or to otherwise 2 circumvent that statute’s restrictions on second or successive habeas corpus petitions.”64 3 A Rule 60(b) motion is considered a second or successive petition when it advances a 4 new ground for relief or “attacks the federal court’s previous resolution of a claim on the
5 merits.”65 A Rule 60(b) motion does not constitute a successive habeas petition if the petitioner 6 “merely asserts that a previous ruling which precluded a merits determination was in error.”66 7 “Before a second or successive application permitted by [] section [2244] is filed in the district 8 court, the applicant [must] move in the appropriate court of appeals for an order authorizing the 9 district court to consider the application,”67 and the court of appeals must determine that it 10 presents a claim not previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual- 11 innocence provisions.68 12 Because Peck’s motion is brought under Rule 60(b) and challenges the denial of his 13 habeas petition, I must first determine whether his motions are the equivalent of a second or 14
15 64 Id. (citing Calderon v. Thompson, 523 U.S. 538, 547 (1998)) (internal quotation marks 16 omitted). 65 See Banister, 590 U.S. at 517–18 (citing Gonzalez, 545 U.S. at 532). See also Rivers v. 17 Guerrero, 605 U.S. 443, 451 (2025) (stating that “a self-styled ‘motion’ that ‘seeks to add a new ground for relief’ or ‘attacks the federal court’s previous resolution of a claim on the merits’ can 18 be construed as a second or successive petition and forced to face the gauntlet of § 2244(b), no matter how it is labeled.”). 19 66 Gonzalez, 545 U.S. at 532 n.4 (explaining that “on the merits” in this context refers to a 20 determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. § 2254(a) and (d),” and “[w]hen a movant asserts one of those grounds (or 21 asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim,” but “[h]e is not doing so when he merely asserts that a previous ruling which 22 precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.”). 23 67 28 U.S.C. § 2244(b)(3)(A). 68 See Gonzalez, 545 U.S. at 530 (citing 28 U.S.C. § 2244(b)(3)). 1 successive habeas petition.69 If Peck’s Rule 60(b) motions are the equivalent of second or 2 successive petitions, this court lacks jurisdiction to consider them absent a certificate from the 3 Ninth Circuit authorizing the filing of a second or successive petition.70 4 Peck’s motions incorporate his application for a certificate of appealability filed in the
5 Ninth Circuit.71 His allegations in that application allege that reasonable jurists could disagree 6 with my resolution of the merits of Grounds 1–4 and 6 of his third amended petition.72 Because 7 those allegations attack my prior resolution of his claims on the merits, they are successive,73 so 8 this court lacks jurisdiction to entertain them.74 Peck makes additional allegations in his motion 9 that, as illustrated below, attack my prior resolution of his claims on the merits of Grounds 1-4 10 and 6 of his petition, and allege new grounds for relief.75 11 1. Ground 1 12 Peck alleges that I committed errors of law and fact—and also fraud—when deciding 13 Ground 1 of his petition, in which he alleged due-process violations based on pre-indictment and 14 pre-trial delay.76 His claims that I erred when finding that he did not show prejudice stemming
15 from a tactical or reckless delay by law enforcement because I overlooked his best witness (an 16 alleged police officer who could allegedly provide Peck with an alibi for the time of the offense) 17 18
69 See Gonzalez, 545 U.S. at 530–32. 19 70 See 28 U.S.C. § 2244(b)(1); Cooper v. Calderon, 274 F.3d 1270, 1274–75 (9th Cir. 2001). 20 71 ECF No. 169 at 1–2, 9–53. 21 72 Id. 73 See Banister, 590 U.S. at 517–18 (citing Gonzalez, 545 U.S. at 532). 22 74 See 28 U.S.C. § 2244(b)(1); Cooper, 274 F.3d at 1274–75. 23 75 ECF No. 169 at 2–6; ECF No. 179 at 1–8. 76 ECF No. 169 at 2–3. See ECF No. 160 at 14–29. 1 died before Peck’s trial.77 He argues that my ruling is based on an incorrect standard that is 2 contrary to law.78 He maintains that the State admitted the delay in prosecuting him was its 3 fault, not Peck’s,79 and that the state court held him to an impossible standard and put him in a 4 catch–22 situation because he could not prove his alibi due to the State’s delay in prosecution.80
5 These allegations attack this court’s resolution of Ground 1 on its merits,81 so they are barred as 6 successive.82 7 2. Ground 2 8 Peck alleged in Ground 2 of his petition that he did not unequivocally, knowingly, 9 voluntarily, and intelligently, waive his right to counsel,83 He now argues that I ignored the 10 prosecutor’s “flagrant misconduct” in failing to inform Peck that the victim identified his voice 11 before Peck waived his right to counsel and chose to represent himself at trial.84 He claims this 12 court’s determination on Ground 2 was a “clear mistake” and an “error of law and fact” and that 13 he was denied discovery and time to prepare a defense, along with effective assistance of 14 counsel, or counsel at all, and that he is innocent.85 The allegation of innocence is a brand-new
15 claim, but the rest of these allegations attack my previous resolution of Ground 2 on its 16 17
18 77 Id. 78 Id. 19 79 Id. 20 80 Id. 21 81 See Gonzalez, 545 U.S. at 532. 82 Id. 22 83 See ECF No. 160 at 29–40 23 84 ECF No. 169 at 3. 85 ECF No. 179 at 4. 1 merits.86 So the allegations in this Rule 60(b) motion related to Ground 2 are barred as 2 successive.87 3 3. Ground 3 4 In Ground 3, Peck alleged that he was denied due process because the trial court denied
5 him adequate time to prepare his defense.88 Peck argues in his Rule 60b) motion that this court 6 clearly erred in its resolution of Ground 3,89 He bases this allegation on the arguments contained 7 in the application for a certificate of appealability that was denied by the Ninth Circuit.90 In the 8 application for a certificate of appealability, Peck argued that my procedural ruling was 9 incorrect.91 On Ground 3, I first applied deferential review to the state court’s determination that 10 the claim was procedurally defaulted and concluded that the state court’s decision was based on 11 an unreasonable determination of fact.92 I then applied de novo review to the claim and 12 concluded that Peck failed to establish prejudice to overcome the default.93 Finally, applying de 13 novo review to the merits of the claim, I alternatively ruled that Peck did not demonstrate that the 14 failure to grant a trial continuance was fundamentally and constitutionally unfair.94 Thus, my
15 rulings on Ground 3 did not preclude a determination on the merits. Accordingly, Peck’s 16 17
18 86 See Gonzalez, 545 U.S. at 532. 87 Id. 19 88 See ECF No. 160 at 41–48. 20 89 ECF No. 169 at 3. 21 90 Id. 91 Id. at 36–41. 22 92 ECF No. 160 at 45–46. 23 93 Id. 94 Id. at 48. 1 allegations attack my previous resolution of the claim in Ground 3 and are barred as 2 successive.95 3 4. Ground 4 4 Nex, Peck attacks my ruling on Ground 4 of his petition, in which he alleged that he was
5 denied due process based on the admission of unduly suggestive voice-identification evidence96 6 because it was “manifestly unjust” based on the arguments contained in the application for a 7 certificate of appealability.97 This argument is a clear attack on my resolution of this claim98 and 8 is thus barred as successive.99 9 5. Ground 5 10 Peck does not make any allegations that I erred with respect to my rulings for Ground 11 5,100 in which he alleged that appellate counsel was ineffective for failing to argue on appeal that 12 the prosecution engaged in misconduct by not disclosing the voice identification prior to trial in 13 violation of his Sixth Amendment rights.101 I dismissed that ground as untimely. Peck’s Rule 14 60(b) motion does not challenge that ruling. Instead he alleges prosecutorial misconduct as it
15 relates to Ground 2, arguing that the prosecutor “stood mute” and failed to disclose the voice 16 identification at the hearing on his request to self-represent at trial, and that the prosecutor’s 17 failure to divulge that information at that time prejudiced him by affecting his decision to waive 18 19 95 See Gonzalez, 545 U.S. at 532. 20 96 See ECF No. 160 at 48–53. 21 97 ECF No. 169 at 3. 98 See Gonzalez, 545 U.S. at 532. 22 99 Id. 23 100 ECF Nos. 169, 179. 101 ECF No. 97 at 26–29; ECF No. 128 at 8–9. 1 counsel.102 Peck’s Rule 60(b) motions do not advance a claim related to my procedural ruling 2 dismissing Ground 5 as untimely.103 3 6. Ground 6 4 Peck makes several allegations related to Ground 6 of his petition,104 in which he alleged
5 that the State knowingly used false evidence to convict him, i.e., the State’s criminalist testified 6 falsely when he agreed with the prosecutor that PCR is “almost like growing the DNA” because 7 PCR uses synthetic replicas of DNA, not replicas of natural DNA.105 Peck now argues that it 8 was an error of fact and law for this court to ignore that the respondents never raised the 9 affirmative defense of procedural default in their answer or their motion to dismiss.106 For 10 Ground 6, I gave deferential review to the state court’s determination that the claim was 11 procedurally defaulted, which the respondents raised, by citing to the state court’s determination, 12 in their answer.107 I also ruled that the claim in Ground 6 would not survive de novo review on 13 its merits.108 Because I addressed the merits of Ground 6, my procedural rulings did not 14 preclude a determination of the merits.109
15 16 17
102 ECF No. 169 at 3 (referring to pages 21–27 of his application for a certificate of appealability 18 attached to his motions, which corresponds to ECF No. 169 at 30–36 concerning his claim in Ground 2 of the petition). 19 103 See Gonzalez, 545 U.S. at 532 & n.4. 20 104 ECF No. 169 at 3–5. 21 105 See ECF No. 160 at 53–58. 106 ECF No. 169 at 3–4. 22 107 ECF No. 160 at 53–58. 23 108 Id. 109 See Gonzalez, 545 U.S. at 532 & n.4. 1 Peck adds that I committed additional error with respect to Ground 6 when I ruled that he 2 failed to show how the DNA evidence was mischaracterized.110 He argues he has shown by 3 clear and convincing evidence that the jury’s verdict was obtained through fraud, 4 misrepresentation, or misconduct.111 He contends that PCR physically alters the DNA and is
5 patent eligible,112 and that PCR analysis is analysis of synthetic, not a natural sample, of DNA.113 6 He argues this Court erred in its determination that he did not show the state’s characterization of 7 the DNA evidence was false because he alleges that, contrary to what the jury was told, the 8 respondents admitted it was false in their answer to his petition when they stated the DNA 9 evidence was “in reality, just a reliable ‘investigative method.’”114 He asserts that the 10 respondent’s statement in its answer constitutes new evidence under Rule 60(b)(2) that shows 11 extrinsic fraud perpetrated upon the court.115 12 The respondent’s answer to the petition is not newly discovered evidence of fraud 13 perpetrated on the court because the respondent’s statement in its answer existed when Peck 14 submitted his reply brief and when I resolved Peck’s petition.116 I note that the respondents’
15 statement, in the context of the answer, does not admit the evidence presented to the jury was 16 false.117 17
18 110 ECF No. 169 at 4. 19 111 ECF No. 179 at 3. 112 ECF No. 169 at 3. 20 113 ECF No. 179 at 4. 21 114 Id. at 2–3. 22 115 Id. 116 See ECF Nos. 135, 141. 23 117 ECF No. 179 at 7 (citing ECF No. 135 at 15, lines 17–18). However, the respondents’ argument, in context, states: 1 Peck also asks that I take judicial notice of an excerpt from a 1995 hearing transcript in a 2 Minnesota District Court case, which he alleges is evidence the judge in that case had a 3 background in biology and perpetrated a fraud that PCR produces human DNA. This, he claims, 4 is new evidence.118 Even if this were something that this court could or would take judicial
5 notice of, it’s not new evidence because it existed at the time Peck argued the merits of his 6 petition. Because Peck’s allegations in this new motion merely attack my previous resolution of 7 Ground 6 on its merits,119 they, too, are barred as successive.120 8 Peck raises many additional arguments attacking my resolution of the claims in Ground 9 6, all of which are barred as successive. He claims that he was never afforded an opportunity to 10 show all the ways that PCR-STR-CCN is totally unreliable and outright false, he did not receive 11 a fair trial, and if a new test were conducted, the evidence would be inadmissible.121 He argues 12 that I ignored Linda Brown’s testimony that she transported the evidence several times and that 13 the assertion that the evidence went from the vault to Rene Romero is false and an error of 14
15 There is no reasonable likelihood that the jurors found Peck guilty because they believed the criminalists analyzed a natural sample instead of a synthetic sample. 16 See Giglio, 405 U.S. at 154. It is much more likely that the jurors convicted Peck because they believed the PCR process was a reliable investigative method. Riolo 17 testified the process is also used in microbiology for cloning. ECF No. 107-25 at 14. Using PCR for cloning would unmistakably inform the jurors that the process 18 is not natural, but synthetic. By describing the process as replicating or duplicating DNA and stating that the process is used for cloning, Riolo’s 19 testimony as a whole shows the prosecution did not knowingly use false or perjured testimony to convict Peck. 20 ECF No. 135 at 15, lines 15–22. 21 118 ECF No. 169 at 4–6; ECF No. 179 at 2–4 (citing ECF No. 135 at 15 and ECF No. 169 at 55– 56). 22 119 See Gonzalez, 545 U.S. at 532. 23 120 Id. 121 ECF No. 169 at 4. 1 fact.122 He claims that there was fraud perpetrated during his trial because the DNA was 2 misrepresented as his DNA and the forensic PCR was falsely referred to as producing human 3 DNA, rather than truthfully as synthetic DNA, and this kind of fraud has been perpetrated in 4 other court cases.123 He argues that he has shown by clear and convincing evidence the verdict
5 was obtained through fraud, misrepresentation, or misconduct,124 that the entire country has been 6 misled about the nature of the PCR evidence and, if the truth were told, PCR evidence would be 7 inadmissible, irrelevant, and unreliable.125 These allegations attack my previous resolution of 8 the claim in Ground 6 on its merits.126 So they, too, are barred as successive.127 9 In his reply brief, Peck cites to Kemp v. United States, in which the Supreme Court ruled 10 that under Rule 60(b)(1), a “mistake” encompasses “any ‘misconception,’ ‘misunderstanding,’ or 11 ‘fault in opinion or judgment’ as well as errors ‘of law or fact.’”128 Peck argues that I made 12 “clear mistakes,” “clear error,” and errors of “fact and law,” and that there was “fraud upon the 13 court.”129 But these alleged errors consist entirely of arguments disagreeing with my rulings on 14 the merits of his claims in his petition.130 The Supreme Court’s ruling in Kemp does not affect
15 the outcome of Peck’s Rule 60(b) motions as Peck does not raise a legal error, “mistake,” 16 17
18 122 Id. 123 Id. at 4–5. 19 124 ECF No. 179 at 3. 20 125 Id. at 7–8. 21 126 See Gonzalez, 545 U.S. at 532. 127 Id. 22 128 Kemp v. United States, 596 U.S. 528, 534–35 (2022). 23 129 ECF No. 169 at 3–6; ECF No. 179 at 2–8. 130 ECF No. 169 at 3–6; ECF No. 179 at 2–8. 1 “misconception,” “misunderstanding,” or “fault in opinion or judgment” relating to a previous 2 ruling that precluded a determination on the merits.131 3 Finally, Peck contends that he is entitled to relief under Rule 60(b)(6) because he has not 4 received fair process, was denied a defense at trial, was deprived discovery and time to prepare,
5 was forced to proceed with standby counsel who stated he “would see Peck convicted,” the state 6 court removed pages from his opening brief containing claims of extrinsic fraud and fraud upon 7 the court, the state court erred by ruling that Peck never moved for a continuance while 8 proceeding pro se, the clerk of the state court failed to mail him a transcript, and at the federal 9 level, his rights were totally disregarded due to the bias of this court.132 He claims that he is 10 innocent, a victim of a Kangaroo Court, that he made a prima facie claim of actual innocence, 11 that he deserves a fair trial, that he was prevented from fully and fairly presenting his case, and 12 the evidence was misrepresented to the jury.133 But these theories, too, seek to relitigate the 13 court’s rulings on his claims in the petition and are barred as successive. And to the extent Peck 14 claims actual innocence, this is a brand-new claim because he did not raise a free-standing
15 actual-innocence claim in his petition.134 16 Because Peck’s Rule 60(b) motions constitute an improper attempt to raise new claims or 17 re-litigate this court’s prior rulings on the merits of his claims in his petition, they constitute 18 second or successive petitions, and the law requires me to dismiss them because I lack 19 jurisdiction to entertain the claims contained in them.135 20
21 131 See Gonzalez, 545 U.S. at 532 & n.4. 132 ECF No. 179 at 5–6. 22 133 Id. at 6–7. 23 134 Id. at 4, 6-7. 135 See Gonzalez, 545 U.S. at 532. 1 E. Referral of Second or Successive Petitions to Ninth Circuit 2 Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or successive 3 petition or motion, or an application for authorization to file such a petition or motion, is 4 mistakenly submitted to the district court, the district court shall refer it to the court of appeals.”
5 To the extent that Peck’s second or successive petitions were “mistakenly submitted” to this 6 court, this rule requires me to refer them to the Ninth Circuit Court of Appeals. I therefore 7 simultaneously deny and dismiss Peck’s Rule 60(b) motions and refer them to the Ninth Circuit 8 for consideration as such.136 9 F. Denial of Certificate of Appealability 10 A petitioner must first obtain a certificate of appealability (“COA”) to appeal the 11 dismissal of a habeas petition.137 The COA requirement extends to successive habeas petitions 12 that are disguised as Rule 60(b) motions.138 As a result, petitioners must obtain a COA in order 13 to appeal a determination that his Rule 60(b) motion is actually an unauthorized successive 14 § 2254 habeas petition.
15 If a court does not reach the merits of a petitioner’s claims, a COA may issue only if the 16 petitioner shows “that jurists of reason would find it debatable whether the petition states a valid 17 claim of the denial of a constitutional right and that jurists of reason would find it debatable 18 whether the district court was correct in its procedural ruling.”139 I am aware that I “must 19 20 136See, e.g., Passalacqua v. McDonald, 2018 WL 11267398, at *3 (C.D. Cal. Aug. 31, 2018); 21 Cielto v. Hedgpeth, 2014 WL 1801110 (C.D. Cal. Apr. 23, 2014). 22 137 28 U.S.C. § 2253(c)(1). 138 Jones v. Ryan, 733 F.3d 830, 832 n.3 (9th Cir. 2013) (citations omitted) (finding that 28 23 U.S.C. 2244 governs appeals of successive habeas petitions brought as Rule 60(b) motions). 139 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 1 resolve doubts about the propriety of a COA” in Peck’s favor.140 I have no doubt that reasonable 2 jurists would not find it debatable that Peck’s 60(b) motions are successive habeas petitions. 3 Consequently, this matter is not “adequate to deserve encouragement to proceed further,”141 and 4 I deny a certificate of appealability.
5 Conclusion 6 IT IS THEREFORE ORDERED that: 7 1. The motion to withdraw as attorney for the petitioner [ECF No. 171] is DENIED as 8 moot. But because the Ninth Circuit granted Attorney Amelia Bizzaro’s motion to 9 withdraw, the Clerk of Court is directed to reflect that Bizzaro has been 10 terminated as counsel and that Peck is self-representing again. 11 2. Petitioner’s motion for enlargement of time to file a reply brief in support of his Rule 12 60(b) motions [ECF No. 178] is GRANTED and the reply brief [ECF No. 179] is 13 considered timely. 14 3. Petitioner’s motions regarding recusal of judge [ECF Nos. 168, 175] are DENIED.
15 4. Petitioner’s Rule 60(b) motions to correct errors of law and fact, and fraud [ECF Nos. 16 169, 170] are construed as unauthorized second or successive petitions and 17 DISMISSED. 18 5. In accordance with Ninth Circuit Rule 22-3(a), this court refers the Rule 60(b) 19 motions [ECF Nos. 169, 170] to the U.S. Court of Appeals for the Ninth Circuit 20 for consideration as an application for leave to file a second-or-successive habeas 21 petition. The Clerk of Court is directed to send a copy of the Rule 60(b) motions 22 140 Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (citing Lambright v. Stewart, 220 23 F.3d 1022, 1025 (9th Cir. 2000) (en banc)). 141 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). ] [ECF Nos. 169, 170] to reopen the action and a copy of this Order to the Clerk of 2 the U.S. Court of Appeals for the Ninth Circuit. 3 6. The Clerk of Court is directed to provide the petitioner with the form recommended 4 by the Ninth Circuit for filing an Application for Leave to File Second or Successive 5 Petition Under 28 U.S.C. § 2254. 6 7. Acertificate of appealability is DENIED. LOE April 7, 2026 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23