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Jordan v. Ryan
United States District Court, D. Arizona
March 5, 2018
Henderson Jordan, Petitioner,
Charles Ryan, et al., Respondents.
A. Teilborg Senior United States District Judge.
8, 2016, this Court issued the following Order on
Petitioner's then-pending motion under Federal Rule of
Civil Procedure 60(b):
On September 1, 2015, this Court denied Petitioner's
Petition for Writ of Habeas Corpus and entered judgment on
the Petition. (Docs. 24 and 25). Petitioner did not appeal.
Beyond the deadlines for filing motions for reconsideration
(14 days under Local Rule Civil 7.2(g)) or motions to alter
or amend judgment (28 days under Federal Rule of Civil
Procedure 59(e)), Petitioner filed a “motion to
reopen” on January 15, 2016. (Doc. 27). Respondent did
not respond to the motion.
Petitioner claims to seek relief under Federal Rules of Civil
Procedure 60(b)(1), 60(b)(3), and 60(b)(6). The former two
Rules have a one year statute of limitations from the entry
of judgment. Fed. R. Civ. Pro. 60(c)(1).
Preliminarily, the Court has read the entire motion, and
notes that Petitioner makes no actual argument under Federal
Rules of Civil Procedure 60(b)(1), 60(b)(3) or 60(b)(6).
Instead Petitioner argues for reconsideration of this
Court's September 1, 2015 Order. Thus, what Petitioner
filed is 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). The Court could deny the motion
on this basis.
Nonetheless, turning to Federal Rule of Civil Procedure
60(b)(1), neither party has made any argument of mistake,
inadvertence, surprise, or excusable neglect. See
Fed. R. Civ. Pro. 60(b)(1). However, Petitioner has alleged
various factual and legal errors.
“The Ninth Circuit has specifically recognized that
errors of law are cognizable under Rule 60(b). See
Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th
Cir.1982). It has also noted that, where the legal error is a
mistake by the court, Rule 60(b)(1) is applicable. See
id.; see also In re Int'l Fibercom, Inc.,
503 F.3d 933, 941 n.7 (9th Cir. 2007).”
Prado v. Quality Loan Serv. Corp., No., 2014 WL
2119864, at *2 (N.D. Cal. May 21, 2014).
When considering “mistake” the Court must
consider four factors. Lemoge v. U.S., 587 F.3d
1188, 1192 (9th Cir. 2009). Specifically, “(1) the
danger of prejudice to the opposing party; (2) the length of
delay and its potential impact on the proceedings; (3) the
reason for the delay; and (4) whether the movant acted in
good faith.” Bateman v. U.S. Postal Servs.,
231 F.3d 1220, 1223-24 (9th Cir. 2000). Since neither party
made any argument regarding any of these factors, it is very
difficult for the court to apply them. However, to the extent
obtaining relief under Rule 60(b)(1) is the movant's
burden, Petitioner has failed to show that any of these
factors weigh in his favor. Accordingly, relief under Federal
Rule of Civil Procedure 60(b)(1) is denied.
Although the Petitioner cited Federal Rule of Civil Procedure
60(b)(3), the Court will not consider fraud,
misrepresentation, or misconduct by the opposing party,
because there is no evidence or argument showing the presence
of these issues. See Fed. R. Civ. Pro. 60(b)(3).
Finally, although 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)).
As indicated above, the Court has reviewed the entire motion.
The motion simply reargues matters that this Court already
considered, de novo, in ruling on Petitioner's objections
to the Report and Recommendation. See (Doc. 24 at 2,
n. 2). Nothing in the motion justifies relief for all of the
reasons stated in the Order of September 1, 2015.
Accordingly, to the extent Petitioner has filed a proper
motion under Federal Rule of Civil Procedure 60(b)(6), relief
In his motion, Petitioner also seeks appointment of counsel.
For the reasons stated above, the currently pending motion is
untimely and, alternatively, without merit. Thus, appointment
of counsel is denied because Petitioner will not succeed on
the merits. See Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983).
On February 4, 2016, Petitioner requested to amend his
pending motion to add a request for a certificate of
appealability. The Court permits the request to amend, but
denies a certificate of appealability. Petitioner was
required to timely appeal this Court's judgment of
September 1, 2015, and nothing in the pending motion renews
or revives that expired deadline. See Sears, Sucsy &
Co. v. Insurance Co. of N. America, 392 F.Supp. 398, 409
(N.D. Ill. 1974). Further, the motion to reopen is without
merit for the reasons stated in ...
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