United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner's Motion for Relief from
the Court's Order, (Doc. 56), Petitioner's Motion for
Entry of Default Judgment, (Doc. 59), and Petitioner's
Motion for Ruling, (Doc. 63). Respondent has filed a Response
to the Motion for Entry of Default Judgment, (Doc. 61), and
Petitioner has Replied, (Doc. 62). Petitioner has also filed
a Motion to Supplement his Reply and his Motion for Ruling,
the Court denies Petitioner's Motion for Entry of Default
Judgment. “[T]he grant or denial of a motion for the
entry of a default judgment is within the discretion of the
court.” Lau Ah Yew v. Dulles, 236 F.2d 415,
416 (9th Cir. 1956) (per curiam). “[F]ailure to respond
to claims raised in a petition for habeas corpus does not
entitle the petitioner to a default judgment.”
Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990)
(collecting cases). As this Court has explained, this is true
even if the state has “completely failed to respond in
any meaningful fashion.” Young v. Arizona, No.
CV-14-00733-TUC-RCC, 2016 WL 909517, at *4 (D. Ariz. Mar. 10,
2016) (quoting Gordon, 895 F.2d at 612). Even though
Gordon and Young occurred in the context of
a petition for habeas corpus, and not a Rule 60 motion,
because the context of the pending motion is a relief from a
denial of habeas petition, the same concerns are implicated.
See Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir.
1994) (observing that “[r]eleasing a properly convicted
prisoner . . . is apt to be a disproportionate sanction for
the wrong failing to file a timely motion for an extension of
time”). Because of these concerns, the Court will deny
Petitioner's motion for entry of a default judgment.
seeks relief under Federal Rule of Civil Procedure
(“Rule”) 60(b)(6) from the Court's prior
Order Adopting the Report and Recommendation of Magistrate
Judge Aspey (“R&R”), (Doc. 37). Rule 60(b)(6)
allows the Court discretion to “relieve a party or its
legal representative from a final judgment, order, or
proceeding for . . . any other reason that justifies
relief.” Rule 60(b)(6). However, a movant must first
show that “extraordinary circumstances” justify
reopening a final judgment. Gonzalez v. Crosby, 545
U.S. 524, 535 (2005) (collecting cases); In re Int'l
Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007)
(stating that Rule 60(b)(6) motion should be “utilized
only where extraordinary circumstances prevented a party from
taking timely action to prevent or correct an erroneous
judgment”) (quoting United States v.
Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)).
Petitioner fails to demonstrate the existence of
“extraordinary circumstances” that prevented him
from “taking timely action to prevent or correct an
erroneous judgment.” In re Int'l Fibercom,
Inc., 503 F.3d at 941. The majority of Petitioner's
arguments revolve around an alleged violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). (Doc. 56 at 1-4). These
arguments largely rehash those he made in both his original
petition, (Doc. 1), and in his objections to the R&R,
(Doc. 34). To the extent that Petitioner simply reasserts
arguments he made to the Court in his original petition, he
fails to assert the existence of “extraordinary
circumstances” that would justify reopening a final
judgment. Petitioner does contend that, because he had to
proceed pro se, his state appeal was untimely filed and that
lead to his Petition being procedurally barred. (Doc. 56 at
4). Petitioner's single conclusory assertion, however, is
not sufficient to carry his burden to show that the
circumstances prevented him from correcting an erroneous
judgment. Indeed, as discussed in the R&R, Petitioner did
timely file a pro-per petition for post-conviction relief
that was summarily rejected by the trial court. (Doc. 31 at
3). It was only after this that he filed an untimely petition
for review. (Id. at 4). Therefore, the record
actually indicates that Petitioner was able to timely file
the appropriate documents even after he began proceeding pro
se in this matter.
also alleges that he is entitled to relief by reason of the
Supreme Court's decision in Martinez v. Ryan,
566 U.S. 1 (2012). (Doc. 56 at 5-6). However, the change in
the law brought about by Martinez is not, in and of
itself, an “extraordinary circumstance”
justifying relief under Rule 60(b)(6). Moses v.
Joyner, 815 F.3d 163, 168- 69 (4th Cir. 2016)
(collecting cases); see also Gonzalez, 545 U.S. at
536-38 (stating that a change in habeas decisional law is
not, by itself, an “extraordinary circumstance”
justifying relief under Rule 60(b)(6)). Accordingly, this
argument is also defective because the Petitioner has not
established the necessary predicate to granting relief under
the Court denies a certificate of appealability to Petitioner
for failure to make a substantial showing of the denial of a
constitutional right. See 28 U.S.C. §
on the foregoing, IT IS ORDERED that the
Motion to Supplement, (Doc. 64), is
IS FURTHER ORDERED that the Motion for Ruling, (Doc.
63), is GRANTED.
IS FURTHER ORDERED that the Motion for Relief from
the Court's Order, (Doc. 56), and the Motion for Entry of
Default Judgment, (Doc. 59), are DENIED.
IS FINALLY ORDERED that the Court denies issuance of
a certificate of appealability.
 Petitioner's Motion to Supplement
seeks to incorporate the same passage from Bleitner
into his Motion for Ruling and his Reply to the Response to
the Motion for Entry of Default Judgment. (Doc. 64 at 4-5,
6). Petitioner contends that Bleitner requires this
Court to proceed to the merits of his 2012 Petition.
(Id. at 5). This is incorrect for two reasons.
First, Bleitner is a case from the Seventh Circuit
and not binding on this Court. Second, Bleitner
speaks to the disfavor of granting default judgments in the
context of habeas corpus because of the high cost to society.
See Bleitner, 15 F.3d at 653. But, it is Petitioner
who seeks entry of a Default Judgment. (Doc. 59). Third, the
Court already addressed the merits of the 2012 Petition in
the very order, ...