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Jones v. Ryan

United States District Court, Ninth Circuit

September 23, 2013

Robert Glen Jones, Jr., Petitioner,
Charles L. Ryan, et al., Respondents.


DAVID C. BURY, District Judge.

Before the Court is Petitioner's motion for relief from judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure.[1] (Doc. 106.) The motion seeks relief based on the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), which held that ineffective assistance of postconviction counsel may serve as cause to excuse the procedural default of a claim alleging ineffective assistance of trial counsel. The motion also seeks relief for an alleged Brady violation during habeas proceedings. Respondents oppose the motion. (Doc. 110.) The Court concludes that, because Petitioner's Rule 60(b) motion seeks to raise new claims, it constitutes a second or successive petition that may not be considered by this Court absent authorization from the Court of Appeals for the Ninth Circuit.


In 1998, a jury convicted Petitioner on six counts of first-degree murder for killings that occurred two years earlier during robberies of the Moon Smoke Shop and the Fire Fighters Union Hall in Tucson. The trial court sentenced him to death. Petitioner was also convicted of first-degree attempted murder, aggravated assault, armed robbery, and first-degree burglary. Details of the crimes are set forth in the Arizona Supreme Court's opinion upholding Petitioner's convictions and sentences. State v. Jones, 197 Ariz. 290, 297-98, 4 P.3d 345, 352-53 (2000), cert. denied, 532 U.S. 978 (2001).

In 2003, following unsuccessful state postconviction proceedings, Petitioner sought federal habeas relief. At his request, the Court appointed as counsel Daniel Maynard and Jennifer Reiter (nee Sparks), who had also represented Petitioner during state postconviction proceedings. (Docs. 2, 5.) The amended habeas petition raised numerous claims, including twelve allegations of ineffective assistance of trial counsel. (Doc. 27.) In their Answer, Respondents conceded that each ineffectiveness claim had been properly exhausted in state court. (Doc. 34 at 33.) In January 2010, the Court denied habeas relief in an order and memorandum of decision that addressed on the merits all of Petitioner's allegations concerning trial counsel's representation. (Doc. 79 at 29-46.)

On appeal, the Ninth Circuit affirmed. Jones v. Ryan, 691 F.3d 1093 (9th Cir. 2012). On April 11, 2013, Petitioner filed a certiorari petition in the United States Supreme Court. One week later, Maynard moved the Ninth Circuit for association or substitution of the Federal Public Defender as counsel, citing that office's "many more resources" to conduct further investigation into Petitioner's alleged innocence and potentially litigate additional claims or execution-related issues. Motion for the Association or Substitution of Counsel at 4, Jones v. Ryan, No. 10-99006 (9th Cir. Apr. 19, 2013), ECF No. 56. On April 24, 2013, the Ninth Circuit relieved Maynard as counsel of record and substituted the Federal Public Defender.

The United States Supreme Court denied certiorari on June 17, 2013. Jones v. Ryan, 133 S.Ct. 2831 (2013). The State of Arizona then moved the Arizona Supreme Court to issue a warrant of execution. On August 21, 2013, Petitioner filed the instant motion for relief from judgment, and this Court set a briefing schedule. (Docs. 105, 106.) On August 27, the Arizona Supreme Court set Petitioner's execution for October 23, 2013. Thereafter, Respondents filed an opposition to the instant motion, and Petitioner filed a reply. (Docs. 110, 114.)


Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). A motion under subsection (b)(6) must be brought "within a reasonable time, " Fed.R.Civ.P. 60(c)(1), and requires a showing of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

For habeas petitioners, a Rule 60(b) motion may not be used to avoid the requirements for second or successive petitions set forth in 28 U.S.C. § 2244(b). Gonzalez, 545 U.S. at 530-31. This statute has three relevant provisions: First, § 2244(b)(1) requires dismissal of any claim that has already been adjudicated in a previous habeas petition. Second, § 2244(b)(2) requires dismissal of any claim not previously adjudicated unless the claim relies on either a new and retroactive rule of constitutional law or on new facts demonstrating actual innocence of the underlying offense. Third, § 2244(b)(3) requires prior authorization from the court of appeals before a district court may entertain a second or successive petition under § 2244(b)(2). Absent such authorization, a district court lacks jurisdiction to consider the merits of a second or successive petition. United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).

In Gonzalez, the Court held that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits. " 545 U.S. at 532. "On the merits" refers "to a 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)." Id. at 532 n.4. The Court further explained that a legitimate Rule 60(b) motion "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Id. at 532; accord United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (observing that a defect in the integrity of a habeas proceeding requires a showing that something happened during that proceeding "that rendered its outcome suspect"). For example, a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely asserts that a previous ruling which 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"-or contends that the habeas proceeding was flawed due to fraud on the court. Id. at 532 nn.4-5; see, e.g., Butz v. Mendoza-Powers, 474 F.3d 1193 (9th Cir. 2007) (finding a Rule 60(b) motion not to be the equivalent of a second or successive petition where district court dismissed first petition for failure to pay filing fee or comply with court orders and did not reach merits of claims). The Court reasoned that if "neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, " there is no basis for treating it like a habeas application. Gonzalez, 545 U.S. at 533.

On the other hand, if a Rule 60(b) motion "presents a claim, ' i.e., an asserted federal basis for relief from a... judgment of conviction, ' then it is, in substance, a new request for relief on the merits and should be treated as a disguised" habeas application. Washington, 653 F.3d at 1063 (quoting Gonzalez, 545 U.S. at 530). Interpreting Gonzalez, the court in Washington identified numerous examples of such "claims, " including:

a motion asserting that owing to "excusable neglect, " the movant's habeas petition had omitted a claim of constitutional error; a motion to present "newly discovered evidence" in support of a claim previously denied; a contention that a subsequent change in substantive law is a reason justifying relief from the previous denial of a claim; a motion that seeks to add a new ground for relief; a motion that attacks the federal court's previous resolution of a claim on the merits; a motion that otherwise challenges the federal court's determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief; and finally, an attack based on the movant's own conduct, or his habeas counsel's omissions.

Id. (internal quotations and citations omitted). If a Rule 60(b) motion includes such claims, it is not a challenge "to the integrity of the proceedings, but in effect asks for a second chance to have the merits ...

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