Hayes v. Howell

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 JAMES H. HAYES, Case No. 2:20-cv-00945-GMN-BNW

10 Petitioner, ORDER

11 v. 12 JERRY HOWELL, et al., 13 Respondents. 14 15 In June 2022, the court denied pro se 28 U.S.C. § 2254 habeas corpus petitioner 16 James H. Hayes’ petition on the merits and denied a certificate of appealability. (ECF 17 No. 59.) Judgment was entered. (ECF No. 60.) Hayes has now filed a motion to alter or 18 amend judgment. (ECF No. 61.) As discussed below, the motion is denied. 19 Rule 60(b) entitles the moving party to relief from judgment on several grounds, 20 including the catch-all category “any other reason justifying relief from the operation of 21 the judgment.” Fed.R.Civ.P. 60(b)(6). A motion under subsections (b)(4-6) must be 22 brought “within a reasonable time.” Fed.R.Civ.P. 60(c)(1). 23 Rule 60(b) applies in habeas corpus proceedings only to the extent that it is not 24 inconsistent with the provisions of the Antiterrorism and Effective Death Penalty Act 25 (AEDPA). Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Habeas corpus petitioners 26 cannot “utilize a Rule 60(b) motion to make an end-run around the requirements of 27 AEDPA” or to otherwise circumvent that statute’s restrictions on second or successive 1 United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir.2011) (per curiam) (“[A] state 2 prisoner may not rely on Rule 60(b) to raise a new claim in federal habeas proceedings 3 that would otherwise be barred as second or successive under § 2254.”). 4 AEDPA generally limits a petitioner to one federal habeas corpus petition and 5 precludes “second or successive” habeas corpus petitions unless the petitioner meets 6 certain narrow requirements. See 28 U.S.C. § 2244(b). The statute provides that “[a] 7 claim presented in a second or successive habeas corpus application under section 8 2254 that was not presented in a prior application shall be dismissed unless” it “relies on 9 a new rule of constitutional law, made retroactive to cases on collateral review by the 10 Supreme Court, that was previously unavailable” or on newly discovered facts that show 11 a high probability of actual innocence. Id. § 2244(b)(2)(A)-(B); see also Gonzalez, 545 12 U.S. at 529–30. 13 In Gonzalez, the Court held that a legitimate Rule 60(b) motion in a habeas 14 action “attacks ... some defect in the integrity of the federal habeas proceedings,” while 15 a second or successive habeas corpus petition “is a filing that contains one or more 16 ‘claims,’” defined as “asserted federal bas[e]s for relief from a state court’s judgment of 17 conviction.” 545 U.S. at 530, 532. 18 Here, Hayes argues that he lacked specific intent to commit burglary, black and 19 Hispanic people were systematically excluded from the jury venire, and insufficient 20 evidence supported the guilty verdict. (ECF No. 61.) He does not attack the integrity of 21 the federal habeas proceedings; he asks for a second chance to have the merits of his 22 petition determined favorably. Thus, this filing is not a Rule 60(b) motion but instead is a 23 second or successive habeas corpus petitions, which is proscribed under AEDPA. 28 24 U.S.C. § 2244(b).1 Therefore, Hayes’ motion is denied. 25 26

27 1 Petitioner would have to obtain authorization from the court of appeals before he could proceed 1 IT IS THEREFORE ORDERED that petitioner’s motion to alter or amend 2 judgment (ECF No. 61) is DENIED as set forth in this order. 3 IT IS FURTHER ORDERED that a certificate of appealability is denied. 4 IT IS FURTHER ORDERED that petitioner’s motion to compel judgment and rule 5 on petitioner’s motion to alter or amend judgment (ECF No. 74) is DENIED as moot. 6 7 DATED: 14 October 2022. 8

9 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27