United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
January 21, 2016, this Court denied Movant's motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 19). This Court also denied a certificate
of appealability. (Id.). Movant appealed, and the
Ninth Circuit Court of Appeals ("Ninth Circuit")
denied a certificate of appealability on September 14, 2016.
December 19, 2016, Movant filed a 29 page document that he
titled "Petition to Recall the Mandate En Banc".
(Doc. 24). While the Court is unclear as to exactly what
Movant seeks, either recalling the Ninth Circuit's
decision or en banc rehearing of the decision would have to
be done by the Ninth Circuit and are beyond this Court's
jurisdiction. Thus, any relief of that kind is denied,
without prejudice, as being beyond the jurisdiction of this
in the first sentence of this same motion, Movant states he
is seeking relief under Federal Rule of Civil Procedure
60(b)(6). This type of motion is correctly addressed to this
Court. To the limited extent any relief sought in Doc. 24 can
be considered as a request for Rule 60(b)(6) relief, the
Court will consider it below.
Court has read the entire motion and notes that Movant makes
no actual argument under Federal Rule of Civil Procedure
60(b)(6). Instead Movant argues for reconsideration of this
Court's January 21, 2016 Order. Thus, what Movant filed
is really an untimely motion under Federal Rule of Civil
Procedure 59, which this Court does not have discretion to
consider. See Carter v. United States, 973 F.2d
1479, 1488 (9th Cir. 1992). Accordingly, the Court denies the
motion on this basis.
even though the Court deems this to be an untimely motion
under Federal Rule of Civil Procedure 59, the Court will
nonetheless consider the merits under Federal Rule of Civil
Procedural 60(b)(6). "Rule 60(b)(6) should be 'used
sparingly as an equitable remedy to prevent manifest
injustice'" and should be used only in
'"extraordinary circumstances to prevent or correct
an erroneous judgment.'" In re Int'l
Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007)
(citing United States v. Washington, 394 F.3d 1152,
1157 (9th Cir. 2005)).
primary factual argument in Movant's Rule 60(b)(6) motion
is that the DNA evidence from the victim did not match
Movant's DNA sample. (See e.g., Doc. 24 at 7, 9,
25). From this, Movant argues that he is actually innocent
and thus entitled to habeas relief. The Report and
Recommendation ("R&R") recounted the facts of
this case as follows:
The victim was interviewed by a child forensic interviewer.
(Doc. 12, Ex. B at ¶ 4.) She told the interviewer that
Movant "tried to put his thing in me."
(Id.) She also said that Movant showed her money to
prevent her from telling the police what happened.
(Id.) The victim's siblings were interviewed and
gave the same account as the victim. (Doc. 12, Ex. B at
¶ 6.) The victim's mother took her to the hospital
to be examined. (Id. at ¶ 3) During a sexual
assault examination, the victim's body was swabbed in a
few locations for the presence of DNA. (Doc. 10, Ex. D.) The
swabs were sent to the FBI laboratory and examined for the
presence of blood and semen. (Id.) Analysis revealed
the presence of male DNA on a swab from the victim's hip
and a swab from her buttocks. (Id.) The government
contacted Movant's attorney, Lorna Spencer, who stated
that Movant would provide a DNA sample. (Doc. 10, Ex. E.) On
December 20, 2012, Movant consented to a search, which
entailed the collection of two buccal swabs to develop a DNA
profile for comparison. (Id.) The DNA analysis
report, dated January 10, 2013, excluded Movant as a
contributor of the male DNA on the samples taken from the
victim's hip and buttocks. (Doc. 10, Ex. F.)
. . .
On July 31, 2012, Movant was indicted in the District of
Arizona on one count of attempted aggravated sexual abuse of
a child, in violation of 18 U.S.C. § 1153 and §
2241(c) (Count One), and one count of abusive sexual contact,
in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and
2246(3) (Count Two). (CR Doc. 1.) On February 6, 2013,
Movant, represented by Lorna Spencer, participated in a
change of plea hearing before Magistrate Judge Michelle H.
Burns. (Doc. 10, Ex. G.) During that proceeding, Movant
entered a guilty plea to Count Two pursuant to a plea
(Doc. 18 at 2-3).
recounting in the R&R shows, the results of the DNA test
were known prior to Movant entering his guilty plea. Thus,
nothing has changed since this Court adopted the R&R in
this case. (Doc. 18). Accordingly, Movant has made no showing
entitling him to relief under Rule 60(b)(6).
of the foregoing reasons, IT IS ORDERED that the Motion (Doc.
24) is denied.
FURTHER ORDERED that to the extent a ruling on a certificate
of appealability is required, a ...