United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
before the Court is Petitioner’s motion to alter or
amend the Court’s order, entered March 31, 2016,
pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. (Doc. 128.) Petitioner argues that the Court
should amend its order to include the issuance of a
certificate of appealability (“COA”) with respect
to Petitioner’s Renewed Request for Indication Whether
the Court Would Consider a Rule 60(b) Motion, and also with
respect to the Court’s finding that Petitioner failed
to establish cause and prejudice, in the form of state
post-conviction relief (“PCR”) ineffectiveness
under Martinez v. Ryan, 132 S.Ct. 1309 (2012), to
overcome the procedural default of Claims 11, 12 and 17 in
Petitioner’s § 2254 petition. For the reasons set
forth below, the motion will be denied.
initial matter, Respondents urge this Court to find
Petitioner’s motion, filed on April 28, 2016, untimely.
A motion filed pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure must be filed “no later than 28 days
after the entry of the judgment.” Respondents assert
that the relevant date of entry of judgment in this case is
March 21, 2008, when the Court denied Petitioner’s
amended petition for writ of habeas corpus, and entered
judgment for Respondents. (See Docs. 88 and 89.)
Respondents further assert that the Court’s order,
filed on March 31, 2016, did not affect or reopen the
judgment entered March 21, 2008. The Court agrees.
cannot bring his motion pursuant to Rule 59(e) because this
Court’s March 31, 2016 order was not a final judgment
or an appealable interlocutory order. See Balla v. Idaho
State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir.
1989) (noting that Rule 59(e) only applies to final judgments
and appealable interlocutory orders). While Petitioner
asserts that the Ninth Circuit’s remand order clearly
contemplated that habeas relief could be granted within the
context of Rule 60(b) or Martinez, the Court
declined to reconsider its prior procedural order finding
Claims 4, 11, 12, 16 and 17 procedurally barred, and declined
a renewed request to entertain a Rule 60(b) motion. Thus, the
Court left its previous judgment intact.
construed as a nonspecific motion for reconsideration, it is
untimely. Local Rule of Civil Procedure 7.2(g)(2) states that
“[a]bsent good cause shown, any motion for
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.” The order Petitioner challenges
was filed on March 31, 2016, and Petitioner’s motion
was filed on April 28, 2016. The motion, therefore, is
untimely under Local Rule 7.2(g)(2), and Petitioner has not
proffered any good cause for his untimely filing.
motion for reconsideration may be treated as a Rule
60(b) motion for relief if it is filed past the filing
deadline for a Rule 59(e) motion. See American Ironworks
& Erectors, Inc. v. North American Const. Corp., 248
F.3d 892, 898-99 (9th Cir. 2001). The moving party under Rule
60(b) is entitled to relief from judgment for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; or (6) any other reason
justifying relief from the operation of the judgment.
See Fed.R.Civ.P. 60(b).
the “catch-all provision, ” Rule 60(b)(6), might
apply to Petitioner’s motion. A claim for relief under
that provision requires a showing of “extraordinary
circumstances” that justify reopening a judgment.
See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)
(quoting Ackermann v. United States, 340 U.S. 193,
199 (1950)). “Such circumstances will rarely occur in
the habeas context.” Id. at 535.
Petitioner’s motion falls short of demonstrating the
“extraordinary circumstances” necessary to
justify relief under Rule 60(b).
Petitioner’s Rule 59(e) motion were timely, Petitioner
is not entitled to the relief he requests. As the Ninth
Circuit recently reiterated, altering or amending a judgment
under Rule 59(e) is “an ‘extraordinary
remedy’ usually available only when (1) the court
committed manifest errors of law or fact, (2) the court is
presented with newly discovered or previously unavailable
evidence, (3) the decision was manifestly unjust, or (4)
there is an intervening change in the controlling law.”
Rishor v. Ferguson, __ F.3d __, 2016 WL 2610176, at
*6 (9th Cir. 2016) (citing Allstate Ins. Co. v.
Herron, 634 F.3d 1101, 1111 (9th Cir. 2011)). “[A]
Rule 59(e) motion may not be used to ‘raise arguments
or present evidence for the first time when they could
reasonably have been raised earlier in the litigation,
’” id. (citing Allstate Ins.
Co., 634 F.3d at 1112), nor is it the time “to ask
the court to rethink what it has already thought
through-rightly or wrongly, ” United States v.
Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998)
(quotation omitted). Furthermore, restating previous
arguments does not afford a basis to grant reconsideration.
Rezzonico, 32 F.Supp.2d at 1116.
seeks amendment of this Court’s order, entered March
31, 2016, to include the issuance of a COA. (Doc. 128.)
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only
when a petitioner “has made a substantial showing of
the denial of a constitutional right.” This showing can
be established by demonstrating that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner” or that the issues were “adequate to
deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For procedural
rulings, a COA will issue only if reasonable jurists could
debate whether the petition states a valid claim of the
denial of a constitutional right and whether the
court’s procedural ruling was correct. Id.
Court has already rejected many of Petitioner’s
arguments, and will not reconsider them here. (See
Doc. 127.) Specifically, Petitioner continues to argue that
the Court incorrectly characterized his Rule 60(b) claims as
disguised second or successive claims, and that there was a
defect in the integrity of the proceedings which constituted
an extraordinary circumstance permitting relief from
judgment. (See Id. at 9-13.) These arguments are
without merit. They merely reassert arguments already
addressed and rejected by this Court. The Court will not
reconsider them now.
addition to reasserting arguments made in the motion below,
Petitioner supports his motion with an assertion that the
courts of appeal in this circuit and others have granted a
COA on similar claims that a Rule 60(b) motion is in fact a
disguised successive habeas petition. (Doc. 128 at 4) (citing
Jones v. Ryan, 733 F.3d 825, 832 & n.3 (9th Cir.
2013), and Clark v. Stephens, 627 Fed.Appx. 305, 307
(5th Cir. 2015)). The Court agrees that a COA may be granted
on the district court’s denial of a Rule 60(b)
motion, see Jones, 733 F.3d at 833. n.3,
and that such a claim may implicate “a substantial
showing of the denial of a constitutional right, ” 28
U.S.C. 2253(c)(2). The Court disagrees, however, with
Petitioner’s assertion that jurists of reason could
debate whether the Rule 60(b) motion was a disguised and
unauthorized second or successive § 2254 habeas
petition. The fact that other courts have found the issue
debatable on the facts before them does nothing to inform the
issue on the facts presented in this case. Additionally, the
fact that “three judges of the Ninth Circuit remanded
this matter for consideration of the Brady and
Napue claims under Rule 60(b), ” is not,
contrary to Petitioner’s assessment, “a clear
indication that reasonable jurists could disagree with
respect to this Court’s denial of relief on the Rule
60(b) Request.” (Doc. 128 at 7) (emphasis deleted). The
court specifically noted that it expressed “no opinion
on the merits of Petitioner’s contentions or on whether
an evidentiary hearing is necessary.” (Doc. 104 at 3.)
This Court will not find that the remanding court expressed
an opinion on the merits of the issue where it directly
disavowed offering any such opinion.
Petitioner argues that a COA should be granted to address the
Ninth Circuit’s inconsistency in construing
Petitioner’s motion to stay the appeal and remand as a
motion for leave to file in the district court a renewed
request for an indication whether the District Court would
consider a Rule 60(b) motion, while remanding two other
appeals, Gallegos v. Ryan, Ninth Cir. No. 08-99029,
Dkt. 72-1 (Apr. 7, 2016), and Quezada v. Scribner,
611 F.3d 1165 (9th Cir. 2010), for consideration of the
merits of the underlying Brady claims based on
newly-discovered evidence. Respondents correctly assert that
this argument does not advance Petitioner’s claim
because it fails to establish that reasonable jurists could
debate whether he made a substantial showing of the denial of
a constitutional right, or that this Court was correct in its
also argues that Respondents have failed to explain how the
Court’s materiality determination of the “Fryer
Brady Claim” raised in the habeas petition met
the threshold for a COA (see Doc. 88 at 58-59), but
the “Beatty Brady Claim” argued in his
supplemental brief does not. (Doc. 130 at 6.) This argument,
however, ignores the procedural posture of Petitioner’s
“Beatty Brady Claim.” The Court’s
findings regarding Petitioner’s renewed request for a
Rule 60(b) motion, which addressed whether Petitioner was
attempting to bring a second or successive claim, ...