Opinion
No. 2:11-cv-0911 JAM AC P
08-31-2016
BRIAN FOWLER, Petitioner, v. W. KNIPP, Respondent.
ORDER
Petitioner is a state prisoner proceeding pro se and in forma pauperis and has filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). ECF No. 35. Petitioner asserts that he is entitled to relief from judgment based on (1) his own "mistake, inadvertence, surprise, or excusable neglect," Fed. R. Civ. P. 60(b)(1); (2) "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)," Fed. R. Civ. P. 60(b)(2); or (3) "any other reason that justifies relief," Fed. R. Civ. P. 60(b)(6).
In Gonzalez v. Crosby, the United States Supreme Court stated that "[u]sing Rule 60(b) to present new claims for relief from a state court's judgment of conviction—even claims couched in the language of a true Rule 60(b) motion—circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts." 545 U.S. 524, 531 (2005) (citing § 2244(b)(2)). In other words, "a state prisoner may not rely on Rule 60(b) to raise a new claim in federal habeas proceedings that would otherwise be barred as second or successive under § 2254." United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (citing Gonzalez, 545 U.S. at 531). Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief may not be filed in district court without prior authorization by the court of appeals. Felker v. Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v. Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (once district court has recognized a petition as second or successive pursuant to § 2244(b), it lacks jurisdiction to consider the merits).
"Under § 2244(b), the first step of analysis is to determine whether a 'claim presented in a second or successive habeas corpus application' was also 'presented in a prior application.'" Gonzalez, 545 U.S. at 530. "[A] 'claim' as used in § 2244(b) is an asserted federal basis for relief from a state court's judgment of conviction." Id. "A [Rule 60(b)] motion can also be said to bring a 'claim' if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." Id. at 532 (emphasis in original) (footnote omitted). The term "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). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim." Id. n.4. "[W]hen a 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," petitioner does not present a "claim" that would require the motion be treated as a habeas petition. Id. at 532-33. However, "an attack based on the movant's own conduct, or his habeas counsel's omissions . . . ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably." Id. at 532 n.5.
By order filed September 2, 2016, this court adopted in full the findings and recommendations filed April 2, 2014 (ECF No. 24), and dismissed petitioner's application for a writ of habeas corpus on the merits. ECF No. 28. Approximately three months after petitioner was denied a certificate of appealability by the Ninth Circuit (ECF No. 34), he filed the instant motion (ECF No. 35). Petitioner seeks relief from judgment on the grounds that he committed excusable neglect and that he has new evidence that could not have been discovered earlier. ECF No. 35 at 7-17. He also asks that the court "consider 'any other reason that justifies relief.'" Id. at 17. Petitioner appears to argue that his placement in Administrative Segregation and reliance on "jailhouse lawyers" constitutes the type of "extraordinary circumstances" that justify relief under Rule 60(b)(6). Id. at 2-5
Petitioner's first argument is that the Magistrate Judge's analysis was flawed and that he committed "excusable neglect" by not adequately presenting his arguments in his objections to the findings and recommendations. Id. at 7-17. Both these grounds fall squarely within the examples given by the Supreme Court of Rule 60(b) motions that "would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar." Gonzalez, 545 U.S. at 531-32 (citing 28 U.S.C. § 2244(b)(3)). These arguments therefore constitute an unauthorized second or successive petition and this court lacks jurisdiction to consider them.
Petitioner also argues that he has new evidence in the form of a revised declaration. Id. at 12-14. Even assuming that the evidence petitioner presents is in fact new, his presentation of "new evidence in support of a claim already litigated" is also covered by the examples given by the Supreme Court of Rule 60(b) motions that are barred as second or successive petitions. Gonzalez, 545 U.S. at 531-32 (citing 28 U.S.C. § 2244(b)(3)). Accordingly, this court lacks jurisdiction to consider the argument. The court notes that this particular claim would also fail to satisfy Rule 60(b)(2), as petitioner does not claim that the information contained in the declaration was not previously available, but instead argues that he did not know that the previously omitted information needed to be included in the declaration. ECF No. 35 at 12-14.
Finally, petitioner appears to argue that the circumstances of his incarceration constitute extraordinary circumstances justifying relief under Rule 60(b)(6). Id. at 2-5. "[A] movant seeking relief under Rule 60(b)(6) [is required] to show 'extraordinary circumstances' justifying the reopening of a final judgment." Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). Petitioner's lack of legal sophistication, which he asserts required him to rely on "jailhouse lawyers," and placement in Administrative Segregation, which he claims made it difficult to obtain assistance because of his sex offender status, are circumstances faced by many prisoners and are not extraordinary, especially in light of petitioner's demonstrated ability to file objections without assistance. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding "that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance" with respect to equitable tolling analysis); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) ("reliance on helpers who were transferred or too busy to attend to [petitioner's] petitioner" did not establish extraordinary circumstance for equitable tolling) (citing Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)); Zamudio v. Cate, No. 12-CV-703-BEN (MDD), 2014 WL 2624789, at *8 (S.D. Cal. June 12, 2014) ("Petitioner's status as a sex offender does not constitute extraordinary circumstances."); McCoy v. Sisto, No. CIV S-08-1104 EFB P, 2010 WL 455464, at *3 (E.D. Cal. Feb. 3, 2010) ("Petitioner's difficulty in obtaining assistance from other inmates in preparing his petitions due to his sex offender status does not constitute an extraordinary circumstance beyond his control."). Because petitioner has failed to demonstrate extraordinary circumstances, his motion for relief pursuant to Rule 60(b)(6) will be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The portion of petitioner's motion for relief from judgment that seeks relief pursuant to Federal Rule of Civil Procedure 60(b)(1) and (2) constitutes an unauthorized second or successive petition and is dismissed without prejudice to refiling once petitioner receives authorization to proceed from the Ninth Circuit.
2. The portion of petitioner's motion for relief from judgment that seeks relief pursuant to Federal Rule of Civil Procedure 60(b)(6) is denied. DATED: August 31, 2016
John A. Mendez
UNITED STATES DISTRICT COURT JUDGE