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 MOTIONS FOR 9 RELIEF FROM JUDGMENT v. 10 JASON BENNETT, 11 Respondent. 12 13

15 Before the Court are twelve motions for relief from judgment filed by Petitioner Bret 16 William Ross. Dkt. 22, 23, 24, 27, 28, 29, 31, 33, 34, 35, 38, 39. The Court has reviewed all 17 twelve motions and the remaining record. For the reasons explained below, all twelve motions 18 are DENIED. 19 On August 13, 2024, the Court dismissed Mr. Ross’s federal habeas petition with 20 prejudice in its order adopting the Report and Recommendation of U.S. Magistrate Judge Brian 21 A. Tsuchida. Dkt. 8. The Court agreed with Judge Tsuchida that the petition was untimely and 22 that the asserted ground for relief lacked merit. Id. at 2. Mr. Ross has appealed that decision. 23 Dkt. 10. On September 27, 2024, the Court denied Mr. Ross’s first motion for relief from 24 1 judgment, reiterating that it had correctly construed his habeas petition as one filed under 28 2 U.S.C. § 2254. Dkt. 19. 3 Mr. Ross has since filed twelve additional motions for relief from judgment. All twelve

4 motions are brought under Federal Rule of Civil Procedure 60(b)(4), which allows the Court to 5 grant relief from a final judgment if “the judgment is void.” Fed. R. Civ. P. 60(b)(4). “[A] 6 judgment is not void merely because it is erroneous.” In re Center Wholesale, Inc., 759 F.2d 7 1440, 1448 (9th Cir. 1985). A judgment is void for purposes of Rule 60(b)(4) “only if the court 8 that considered it lacked jurisdiction, either as to the subject matter of the dispute or over the 9 parties to be bound, or acted in a manner inconsistent with due process of law.” United States v. 10 Berke, 170 F.3d 882, 883 (9th Cir. 1999). 11 The Court will consider the merits of Mr. Ross’s motions because they attack alleged 12 defects in the integrity of his habeas proceedings and are not themselves disguised second or

13 successive habeas petitions. See Gonzalez v. Crosby, 545 U.S. 524, 530–33 (2005); United States 14 v. Washington, 653 F.3d 1057, 1063 (9th Cir. 2011). 15 A. Dkt. 22, 23, 24, 27, 28, 29, 33, 34, 35, and 38 16 Most of Mr. Ross’s motions are nearly identical. They contend that the Court violated 28 17 U.S.C. § 636 by failing to conduct de novo review of one of Mr. Ross’s earlier filings: his 18 motion to proceed in forma pauperis (Dkt. 22; see Dkt. 1); his request for certification of a 19 question to the Washington Supreme Court (Dkt. 23; see Dkt. 1-2); his affidavit (Dkt. 24); his 20 motion requesting judicial notice (Dkt. 27); his motion requesting a “Brady order” (Dkt. 28); his 21 motion for an evidentiary hearing (Dkt. 29); his request for records (Dkt. 33; see Dkt. 6); his 22 motion to order a response to his petition (Dkt. 34; see Dkt. 5-2); his motion requesting

23 production of the record (Dkt. 35; see Dkt. 5-3); and his motion requesting discovery (Dkt. 38; 24 see Dkt. 5-4). 1 Although it is unclear to which filings some of these motions (Dkt. 24, 27, 28, 29) intend 2 to relate, none of the motions state a basis for relief under Rule 60(b)(4). As explained in the 3 order adopting the Report and Recommendation, the Court reviewed the entire record, and

4 conducted de novo review of the Report and Recommendation. Dkt. 8 at 1. Because the Court 5 agreed with the Magistrate Judge that the petition was untimely and the claim lacked merit, the 6 Court did not separately address each of Petitioner’s other pending motions or proposed motions, 7 which were mooted by the Court’s dismissal of his petition. This does not violate 28 U.S.C. 8 § 636 or render the Court’s judgment void. 9 B. Dkt. 31 In his motion at Docket 31, Mr. Ross argues that the judgment is void because the 10 District Court “assert[ed] a procedural defense not made by respondent.” Dkt. 31 at 1. To support 11 this argument, Mr. Ross cites Trest v. Cain, 522 U.S. 87 (1997), which held that a district court is 12 not required to raise on its own whether a habeas petitioner failed to comply with a state 13 procedural law (a failure known as “procedural default”). Id. at 89. But in Day v. McDonough, 14 the U.S. Supreme Court held that “district courts are permitted, but not obliged, to consider, sua 15 sponte, the timeliness of a state prisoner’s habeas petition.” 547 U.S. 198, 209 (2006). That is 16 precisely what the Court did here, and it does not make the judgment void. 17 18 C. Dkt. 39 Finally, in his motion at Docket 39, Mr. Ross contends that the Court erred by not 19 applying “the analysis set forth in” Ornelas v. United States, 517 U.S. 690 (1996). But Ornelas is 20 a case about how the Court of Appeals reviews a district court’s findings of reasonable suspicion 21 and probable cause on direct appeal. See id. at 696–98. It is unclear how Ornelas would apply to 22 Mr. Ross’s habeas petition, which is governed by AEDPA and raised a claim rooted in his Sixth 23 24 l Amendment right to a jury trial, not the Fourth Amendment. But nothing in Ornelas shows that 2 || this Court’s judgment dismissing Mr. Ross’s habeas petition is void. 3 Il. CONCLUSION 4 For the reasons explained above, all of Mr. Ross’s pending motions for relief from

5 judgment are DENIED. A certificate of appealability is also DENIED.

6 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

7 || to any party appearing pro se at said party’s last known address.

g Dated this 20th day of December, 2024. Rig 10 Tiffany. Cartwright United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24