1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Edward Lee Jones, Jr., No. CV-16-02051-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Charles L Ryan, et al.,
13 Respondents. 14 15 Pending before the Court is Petitioner’s 35-page “Motion for Reconsideration of 16 Court’s Latest Order at Dkt. 42” (the “Motion for Reconsideration”) in which he seeks 17 reconsideration of the Court’s Order denying his request to re-open his federal habeas case. 18 (Doc. 47). Notwithstanding its title, the body of the Motion for Reconsideration asks that 19 the Court set aside its February 13, 2017, Order (Doc. 30) that dismissed his federal habeas 20 petition and denied him a certificate of appealability (“COA”) (Doc. 30). (Doc. 47 at 1). 21 Petitioner asks that the Court construe this Motion as a Rule 60(b) motion. (Id. at 35). 22 I. Background 23 Petitioner filed his federal habeas action on June 23, 2016. (Doc. 1). On December 24 16, 2017, Magistrate Judge Boyle recommended the Petition be denied (“R&R”). 25 (Doc. 27). Over Petitioner’s objections (Doc. 28), on February 13, 2017, the Court adopted 26 the R&R, dismissed his Petition as untimely, and denied Petitioner a COA, finding 27 dismissal of the Petition was “justified by a plain procedural bar and jurists of reason would 28 not find the procedural ruling debatable.” (Doc. 30). Petitioner appealed the Court’s 1 judgment to the Ninth Circuit Court of Appeals. (Doc. 24). On September 8, 2017, the 2 Ninth Circuit denied Petitioner’s request for a COA and terminated his appeal. Jones v. 3 Ryan, No. 1715385, 2017 WL 8159218 (9th Cir. Sept. 7, 2017). Petitioner sought 4 reconsideration of that order on September 25, 2017. See Petitioner-Appellant’s Motion 5 for Reconsideration, Jones v. Ryan, No. 17-15385 (9th Cir. Sept. 7, 2017). The court 6 denied Petitioner’s request for reconsideration on October 4, 2017. Jones v. Ryan, No. 17- 7 15385 (9th Cir. Oct. 4, 2017) (noting that “no further filings will be entertained in this 8 closed case”). On April 2, 2018, the Ninth Circuit received a letter from the United States 9 Supreme Court Clerk stating the Supreme Court had denied Petitioner’s “motion to direct 10 the Clerk to file a petition for writ of certiorari out of time.” Jones v. Ryan, No. 17-15385 11 (9th Cir. Apr. 2, 2018). 12 Nearly three years later, on July 29, 2021, Petitioner filed a “Notice of Interference 13 by Arizona Department of Corrections Rehabilitation and Re-entry and Motion to Re-open 14 Case to Allow Filing of Rule 60 Motion” with this Court. (Doc. 41). Therein, Petitioner 15 said he suspected someone interfered with his receipt of the Supreme Court’s order denying 16 his motion to file a petition of writ of certiorari out of time, and as a result, he “was made 17 to believe his case was under review” for over three years, an alleged infringement of his 18 due process rights. (Doc. 41 at 3). This Court denied Petitioner’s Motion to Re-Open on 19 October 21, 2021, finding that Petitioner’s contentions did not present grounds from which 20 he could obtain relief from this Court. (Doc. 42 at 2). The Court noted that Petitioner had 21 not established wrongful interference with his due process rights, and that his failure to 22 monitor the public docket for over two years showed a lack of diligence, not that he had 23 been denied access to the courts. (Id. at 2–3). 24 On December 20, 2021, Petitioner filed the pending Motion for Reconsideration 25 (Doc. 47). Therein, he (1) repeats the arguments made in his Petition and Reply in Support 26 of his Petition (id. at 9–18); (2) argues that this Court erred when it denied him a COA (id. 27 at 18–21); and (3) contends, as he did in his Objection, that his actual innocence should 28 excuse his procedural bar or default of claims (id. at 21–35). 1 II. Rule 60(b) Motions 2 As Petitioner requests, the Court will construe Petitioner’s Motion for 3 Reconsideration as a Rule 60(b) motion to set aside its Order dismissing his habeas petition 4 and denying him a COA. Rule 60(b) is the appropriate rule to invoke when a party wishes 5 a court to reconsider claims it has already decided in a § 2254 petition. See Gonzalez v. 6 Crosby, 545 U.S. 524, 532 n.4 (2005) (finding that a motion for relief from judgment 7 challenging only the district court’s prior ruling that the habeas petition was time-barred is 8 not the equivalent of a second or successive petition). See also Morehead v. Schriro, 2008 9 WL 2225781 (D. Ariz. May 27, 2008) (“[P]etitioner may properly seek such 10 reconsideration through the mechanism of a Rule 60(b) motion because the Court, by 11 finding that the petitioner had procedurally defaulted on Ground 7, never reached the merits 12 of that claim.”). 13 Rule 60 articulates six reasons a court may relieve a party from a final judgment or 14 order. Clauses 1 through 5 provide specific reasons for granting relief, while clause 6 15 applies to grounds for relief for “any other reason justifying relief from the operation of 16 the judgment.” Fed. R. Civ. P. 60(b). Clauses 1 through 3 cannot be raised more than one 17 year after the entry of judgment, whereas clauses 4 through 6 must be brought “within a 18 reasonable time.” Fed. R. Civ. P. 60(c)(1). 19 Petitioner does not identify which subsection of Rule 60(b) he brings his Motion 20 under, but the Court finds that the only potentially applicable section is Rule 60(b)(6). The 21 Court denied Petitioner’s Petition on February 13, 2017, far over a year before he filed his 22 Rule 60(b) motion, and thus subsections (b)(1)–(3) cannot provide relief. And in seeking 23 reconsideration of the Court’s Order denying his Petition, Petitioner is challenging the 24 Court’s determination that his Petition is untimely, not that it is “void” or relief is warranted 25 because “the judgment has been satisfied, released, or discharged; it is based on an earlier 26 judgment that has been reversed or vacated; or applying it prospectively is no longer 27 equitable.” See Rule 60(b)(4) & (5). Subsections 4 and 5 are thus inapplicable. The Court 28 will therefore assess his request under subsection 6. 1 A motion under Rule 60(b)(6) must be brought “within a reasonable time” and 2 requires a showing of “extraordinary circumstances.” Gonzalez, 545 U.S. at 535. Courts 3 are cautioned that Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent 4 manifest injustice and is to be utilized only where extraordinary circumstances prevented 5 a party from taking timely action to prevent or correct an erroneous judgment.” Latshaw v. 6 Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). Notably, “[s]uch 7 circumstances will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535. 8 Petitioner’s Motion for Reconsideration certainly was not brought within a 9 reasonable time. Over four years have passed since the Court dismissed Petitioner’s habeas 10 claims; Petitioner has not shown he exercised reasonable diligence in waiting this long to 11 seek relief from the judgment.1 As the Court has already ruled, the fact that he believed 12 his writ to the United State Supreme Court was under review for three years because he 13 never received notice of the letter rejecting it does not implicate his due process rights or 14 excuse his lack of diligence. (See Doc. 42). Petitioner has also failed to make a showing 15 of extraordinary circumstances.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Edward Lee Jones, Jr., No. CV-16-02051-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Charles L Ryan, et al.,
13 Respondents. 14 15 Pending before the Court is Petitioner’s 35-page “Motion for Reconsideration of 16 Court’s Latest Order at Dkt. 42” (the “Motion for Reconsideration”) in which he seeks 17 reconsideration of the Court’s Order denying his request to re-open his federal habeas case. 18 (Doc. 47). Notwithstanding its title, the body of the Motion for Reconsideration asks that 19 the Court set aside its February 13, 2017, Order (Doc. 30) that dismissed his federal habeas 20 petition and denied him a certificate of appealability (“COA”) (Doc. 30). (Doc. 47 at 1). 21 Petitioner asks that the Court construe this Motion as a Rule 60(b) motion. (Id. at 35). 22 I. Background 23 Petitioner filed his federal habeas action on June 23, 2016. (Doc. 1). On December 24 16, 2017, Magistrate Judge Boyle recommended the Petition be denied (“R&R”). 25 (Doc. 27). Over Petitioner’s objections (Doc. 28), on February 13, 2017, the Court adopted 26 the R&R, dismissed his Petition as untimely, and denied Petitioner a COA, finding 27 dismissal of the Petition was “justified by a plain procedural bar and jurists of reason would 28 not find the procedural ruling debatable.” (Doc. 30). Petitioner appealed the Court’s 1 judgment to the Ninth Circuit Court of Appeals. (Doc. 24). On September 8, 2017, the 2 Ninth Circuit denied Petitioner’s request for a COA and terminated his appeal. Jones v. 3 Ryan, No. 1715385, 2017 WL 8159218 (9th Cir. Sept. 7, 2017). Petitioner sought 4 reconsideration of that order on September 25, 2017. See Petitioner-Appellant’s Motion 5 for Reconsideration, Jones v. Ryan, No. 17-15385 (9th Cir. Sept. 7, 2017). The court 6 denied Petitioner’s request for reconsideration on October 4, 2017. Jones v. Ryan, No. 17- 7 15385 (9th Cir. Oct. 4, 2017) (noting that “no further filings will be entertained in this 8 closed case”). On April 2, 2018, the Ninth Circuit received a letter from the United States 9 Supreme Court Clerk stating the Supreme Court had denied Petitioner’s “motion to direct 10 the Clerk to file a petition for writ of certiorari out of time.” Jones v. Ryan, No. 17-15385 11 (9th Cir. Apr. 2, 2018). 12 Nearly three years later, on July 29, 2021, Petitioner filed a “Notice of Interference 13 by Arizona Department of Corrections Rehabilitation and Re-entry and Motion to Re-open 14 Case to Allow Filing of Rule 60 Motion” with this Court. (Doc. 41). Therein, Petitioner 15 said he suspected someone interfered with his receipt of the Supreme Court’s order denying 16 his motion to file a petition of writ of certiorari out of time, and as a result, he “was made 17 to believe his case was under review” for over three years, an alleged infringement of his 18 due process rights. (Doc. 41 at 3). This Court denied Petitioner’s Motion to Re-Open on 19 October 21, 2021, finding that Petitioner’s contentions did not present grounds from which 20 he could obtain relief from this Court. (Doc. 42 at 2). The Court noted that Petitioner had 21 not established wrongful interference with his due process rights, and that his failure to 22 monitor the public docket for over two years showed a lack of diligence, not that he had 23 been denied access to the courts. (Id. at 2–3). 24 On December 20, 2021, Petitioner filed the pending Motion for Reconsideration 25 (Doc. 47). Therein, he (1) repeats the arguments made in his Petition and Reply in Support 26 of his Petition (id. at 9–18); (2) argues that this Court erred when it denied him a COA (id. 27 at 18–21); and (3) contends, as he did in his Objection, that his actual innocence should 28 excuse his procedural bar or default of claims (id. at 21–35). 1 II. Rule 60(b) Motions 2 As Petitioner requests, the Court will construe Petitioner’s Motion for 3 Reconsideration as a Rule 60(b) motion to set aside its Order dismissing his habeas petition 4 and denying him a COA. Rule 60(b) is the appropriate rule to invoke when a party wishes 5 a court to reconsider claims it has already decided in a § 2254 petition. See Gonzalez v. 6 Crosby, 545 U.S. 524, 532 n.4 (2005) (finding that a motion for relief from judgment 7 challenging only the district court’s prior ruling that the habeas petition was time-barred is 8 not the equivalent of a second or successive petition). See also Morehead v. Schriro, 2008 9 WL 2225781 (D. Ariz. May 27, 2008) (“[P]etitioner may properly seek such 10 reconsideration through the mechanism of a Rule 60(b) motion because the Court, by 11 finding that the petitioner had procedurally defaulted on Ground 7, never reached the merits 12 of that claim.”). 13 Rule 60 articulates six reasons a court may relieve a party from a final judgment or 14 order. Clauses 1 through 5 provide specific reasons for granting relief, while clause 6 15 applies to grounds for relief for “any other reason justifying relief from the operation of 16 the judgment.” Fed. R. Civ. P. 60(b). Clauses 1 through 3 cannot be raised more than one 17 year after the entry of judgment, whereas clauses 4 through 6 must be brought “within a 18 reasonable time.” Fed. R. Civ. P. 60(c)(1). 19 Petitioner does not identify which subsection of Rule 60(b) he brings his Motion 20 under, but the Court finds that the only potentially applicable section is Rule 60(b)(6). The 21 Court denied Petitioner’s Petition on February 13, 2017, far over a year before he filed his 22 Rule 60(b) motion, and thus subsections (b)(1)–(3) cannot provide relief. And in seeking 23 reconsideration of the Court’s Order denying his Petition, Petitioner is challenging the 24 Court’s determination that his Petition is untimely, not that it is “void” or relief is warranted 25 because “the judgment has been satisfied, released, or discharged; it is based on an earlier 26 judgment that has been reversed or vacated; or applying it prospectively is no longer 27 equitable.” See Rule 60(b)(4) & (5). Subsections 4 and 5 are thus inapplicable. The Court 28 will therefore assess his request under subsection 6. 1 A motion under Rule 60(b)(6) must be brought “within a reasonable time” and 2 requires a showing of “extraordinary circumstances.” Gonzalez, 545 U.S. at 535. Courts 3 are cautioned that Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent 4 manifest injustice and is to be utilized only where extraordinary circumstances prevented 5 a party from taking timely action to prevent or correct an erroneous judgment.” Latshaw v. 6 Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). Notably, “[s]uch 7 circumstances will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535. 8 Petitioner’s Motion for Reconsideration certainly was not brought within a 9 reasonable time. Over four years have passed since the Court dismissed Petitioner’s habeas 10 claims; Petitioner has not shown he exercised reasonable diligence in waiting this long to 11 seek relief from the judgment.1 As the Court has already ruled, the fact that he believed 12 his writ to the United State Supreme Court was under review for three years because he 13 never received notice of the letter rejecting it does not implicate his due process rights or 14 excuse his lack of diligence. (See Doc. 42). Petitioner has also failed to make a showing 15 of extraordinary circumstances. Petitioner asserts that the Court erred in denying his § 16 2254 motion as untimely and reiterates the arguments he made in his Petition and Reply in 17 support thereof. He also asserts that he is actually innocent and thus any procedural default 18 should be excused. But there has been no “change of circumstances between the time when 19 [he] filed his habeas petition and the time when he filed his 60(b) motion” that justifies 20 relief. Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004). Indeed, Petitioner’s “delay 21 in raising his actual innocence claim may be attributable to inattention or inexperience but 22 1 Local Rules in the District of Arizona state that absent good cause, “any motion for 23 reconsideration shall be filed no later than fourteen (14) days after the date of the filing of the Order that is the subject of the motion.” LRCiv 7.2(g). Moreover, “[u]nless otherwise 24 permitted by the Court, a motion including its supporting memorandum. . . may not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts.” 25 LRCiv 7.2(e)(1). Petitioner’s Motion for Reconsideration was filed over four years after the Court denied his habeas Petition and nearly two months after the Court denied his first 26 Motion to Re-open. As noted, the Motion is 35-page long. Petitioner did not seek leave to file the Motion late or with excess pages. Although the Court could have denied 27 Petitioner’s Motion for noncompliance with these sections, it did not. Instead, it has reviewed Petitioner’s arguments and concluded that Petitioner has not presented any 28 ground under which the Court should reconsider or set aside its prior orders. 1 neither deficiency constitutes an ‘extraordinary circumstance’ that justifies Rule 60(b) 2 relief.” Id. (internal quotation omitted). 3 Petitioner also argues that the Court applied the wrong standard when it denied him 4 a COA following the denial of his habeas petition. In doing so, he cites to Buck v. Davis, 5 137 S. Ct. 759 (2017) and says that the Court erred in denying him a COA when it 6 dismissed his Petition not on the merits, but on procedural grounds. Petitioner does not 7 elaborate further, and nothing in the Buck opinion supports Petitioner’s argument. Rule 11 8 of the Rules Governing § 2254 cases provides that, “[t]he district court must issue or deny 9 a certificate of appealability when it enters a final order adverse to the applicant.” To be 10 entitled to a COA, a habeas petition must show that: “jurists of reason would find it 11 debatable whether the petition states a valid claim of the denial of a constitutional right.” 12 Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the petition was dismissed on procedural 13 grounds, the petitioner must also show “that jurists of reason would find it debatable 14 whether the district court was correct in its procedural ruling.” Id. “[B]oth showings” must 15 be made. Id. In this case, the Court dismissed the Petition as untimely, and denied a COA 16 because jurists of reason would not have found the procedural ruling debatable. (Doc. 30 17 at 6). In doing so, the Court did not apply the wrong standard. Petitioner’s request that the 18 Court set aside its denial of his Petition and COA is denied. 19 The Court will also deny a COA of this Order. U.S. v. Winkles, 795 F.3d 1134, 1142 20 (9th Cir. 2015) (holding “a COA is required to appeal the denial of a Rule 60(b) motion for 21 relief from judgment arising out of the denial of a section 2255 motion”); see also Ciotta 22 v. Frauenheim, 2017 WL 4546728, at *1 (9th Cir. Sept. 7, 2017) (applying Winkles to a 23 Rule 60(b) motion in 28 U.S.C. § 2254 case); Ruelas v. Muniz, 2016 WL 1573439, at *7 24 (C.D. Cal. Apr. 19, 2016) (same). A petitioner is entitled to a certificate of appealability 25 only if he shows “that (1) jurists of reason would find it debatable whether the district court 26 abused its discretion in denying the Rule 60(b) motion and (2) jurists of reason would find 27 it debatable whether the underlying [habeas corpus petition] states a valid claim of the 28 denial of a constitutional right.” Winkles, 795 F.3d at 1142. Petitioner has failed to 1 || demonstrate that he is entitled to a COA related to either the Court’s Order denying his 2 || Motion to Reopen or this Motion for Reconsideration. Reasonable jurists would not find 3 || the Court’s denial an abuse of discretion. 4 Accordingly, 5 IT IS ORDERED that Petitioner’s Motion for Reconsideration (Doc. 47) is denied. || This case shall remain closed. 7 IT IS FURTHER ORDERED that a certificate of appealability is denied as to this 8 || Rule 60(b) motion. 9 Dated this 1st day of March, 2022. 10 11 ( . Ye □□ 12 norable'Diang4. Huretewa 3 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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