Ross v. Bennett

Opinion

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4 5 UNITED STATES DISTRICT COURT AT TACOMA 7 BRET WILLIAM ROSS, Case No. 3:24-cv-05573-TMC 8 Petitioner, ORDER DENYING MOTION FOR RELIEF 9 FROM JUDGMENT v. 10 JASON BENNETT, 11 Respondent. 12 13

15 Before the Court is Petitioner Bret William Ross’s motion for relief from judgment. 16 Dkt. 13. The Court has reviewed the motion and the remaining record. The motion is DENIED. 17 On August 13, 2024, the Court dismissed Mr. Ross’s federal habeas petition with 18 prejudice in its order adopting the Report and Recommendation of U.S. Magistrate Judge Brian 19 A. Tsuchida. Dkt. 8. The Court agreed with Judge Tsuchida that the petition was untimely and 20 that the asserted ground for relief lacked merit. Id. at 2. 21 Mr. Ross has now filed a motion for relief from judgment under Federal Rule of Civil 22 Procedure 60(b)(4), which allows the Court to grant relief from final judgment if “the judgment 23 is void.” Mr. Ross argues that the judgment is void because although he “sought relief under 28 24 U.S.C. § 2241,” the Court “interpreted and recharacterized his pro se petition as a 28 U.S.C. 1 § 2254 petition subjecting him to the restrictions of 28 U.S.C. § 2244(b).” Dkt. 13 at 1–2. This 2 argument is unpersuasive. Because Mr. Ross is in custody pursuant to a state court judgment, the 3 Court is required to construe his habeas petition as one filed under 28 U.S.C. § 2254. “Because

4 § 2254 limits the general grant of habeas relief under § 2241, it ‘is the exclusive vehicle for a 5 habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the 6 petitioner is not challenging his underlying state court conviction.’” Dominguez v. Kernan, 906 7 F.3d 1127, 1135 (9th Cir. 2018) (quoting White v. Lambert, 370 F.3d 1002, 1009 (9th Cir. 8 2004)). For the reasons explained above, the Court DENIES the motion for relief from judgment 10 (Dkt. 13). The Court also DENIES a certificate of appealability. 11 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 12 to any party appearing pro se at said party’s last known address. 13 Dated this 27th day of September, 2024. 14 15 A 16 Tiffany M. Cartwright 17 United States District Judge

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