Opinion
Case No. 1:96-cv-05412 LJO-SAB
08-10-2015
RICHARD GALVAN MONTIEL, Petitioner, v. KEVIN CHAPPELL, as Warden of San Quentin State Prison, Respondent.
DEATH PENALTY CASE
ORDER (1) VACATING HEARING ON PETITIONER'S MOTION FOR INDICATIVE RULING SET FOR AUGUST 11, 2015, and (2) DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR INDICATIVE RULING (ECF No. 239)
Before the Court is Petitioner's July 13, 2015 Rule 62.1 motion for an "indicative ruling" that (1) the Court would grant a Rule 60(b)(1)(6) motion for relief from the November 26, 2014 judgment entered in this case if the Court of Appeals were to remand for that purpose, or (2) that such a motion to vacate could raise a substantial issue.
All references to "Rule" are to the Federal Rules of Civil Procedure unless otherwise noted. --------
The motion argues that this Court should set aside its prior judgment denying habeas relief and allow Petitioner to present to the state court a new claim under Atkins v. Virginia, which held that the Eighth Amendment prohibits the execution of mentally retarded (i.e., intellectually disabled) persons. 536 U.S. 304, 321 (2002).
Petitioner set the motion for hearing on August 11, 2015. Respondent filed opposition on July 28, 2015. Petitioner filed his reply on August 4, 2015. The Court, having reviewed and considered the motion, opposition and reply, finds this matter suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the hearing set for August 11, 2015 at 8:30 a.m. is vacated and the parties need not appear at that time. For the reasons set forth below, the motion for indicative ruling shall be denied without prejudice.
I.
BACKGROUND
Petitioner was arrested and capitally charged with the January 13, 1979 murder and robbery of Gregorio Ante. He was convicted and sentenced to death in 1986. The details of the crimes are set forth in the California Supreme Court's opinion denying relief on direct appeal, People v. Montiel, 5 Cal. 4th 877 (1993), and will not be repeated here. On June 30, 1994, Montiel's petition for certiorari was denied by the United States Supreme Court. Montiel v. California, 512 U.S. 1253 (1994).
Petitioner's state collateral challenges, which did not include an Eighth Amendment claim based on Atkins, were denied. Petitioner then, in 1996, initiated these federal habeas proceedings through appointed former counsel, Messrs. Cassidy and Sirbu. Petitioner filed an amended federal petition in 1997. He did not include an Atkins claim in his federal habeas proceeding. Respondent answered and the claims were fully briefed in 2000. On November 26, 2014, this Court entered judgment denying the amended petition and motion for evidentiary hearing and granting a certificate of appealability for claims 24 and 25 (ineffective assistance of counsel at penalty phase retrial regarding diminished capacity defense). (ECF No. 232 at 142:17-18.) Petitioner filed a notice of appeal on December 22, 2014. (ECF No. 234.) The appeal is pending with the Ninth Circuit.
II.
DISCUSSION
A. Legal Standards
1. Indicative Ruling
It is well settled that the "filing of a notice of appeal divests the district court of jurisdiction." Gould v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir. 1986). When a Rule 60(b) motion is filed in district court after a notice of appeal has been filed, the district court lacks jurisdiction to entertain the motion. Katzir Floor & Home Designs, Inc. v. M-MLS.com, 394 F.3d 1143, 1148 (9th Cir. 2004). "To seek Rule 60(b) relief during the pendency of an appeal, the proper procedure is to ask the district court whether it wishes to entertain the motion, or to grant it, and then move [the court of appeals], if appropriate, for remand of the case." Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004).
The procedure for doing so is set forth in Rule 62.1, which provides that:
(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
2. Relief from Judgment
As relevant here, Rule 60(b) provides that "[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason that justifies relief." Where none of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991).
The decision of whether or not to grant relief under Rule 60(b) is matter of the district court's discretion. See Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996, 1005 (9th Cir. 2007).
B. Analysis
Petitioner contends that notwithstanding evidence he was mildly retarded, his former counsel did not raise a claim under Atkins. He attributes counsel's alleged omission to Rule 60(b)(1) excusable neglect, or to surrounding circumstances that justify relief under Rule 60(b)(6). (ECF No. 239 at 5:28-6:2.)
This Court finds that, for reasons discussed below, the instant motion seeking an indicative ruling that the Court would vacate judgment upon remand, or find a substantial issue raised, shall be denied.
1. AEDPA
Rule 60(b) applies to habeas proceedings, but only in conformity with the Antiterrorism and Effective Death Penalty Act ("AEDPA"), including the limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez v. Crosby, 545 U.S. 524, 529-31 (2005). Because Petitioner asks the Court to consider a substantive "claim," Petitioner's Rule 60(b) motion is, ostensibly, subject to § 2244(b). See id. at 530; Ochoa v. Sirmons, 485 F.3d 538, 540-41 (10th Cir. 2007).
Petitioner did not raise, in state or federal collateral proceedings, an Eighth Amendment Atkins claim that intellectual disability precluded his execution. At this juncture, such a claim could not be reached by this Court because the claim is unexhausted. 28 U.S.C. § 2254(b)(1)(A).
Additionally, the motion before the Court relates to a new claim not present in the amended federal petition. The motion is an apparent second and successive petition unauthorized by the court of appeals. 28 U.S.C. § 2244(b)(3); Felker v. Turpin, 518 U.S. 651, 657 (1996).
The Court finds that AEDPA precludes the Court's granting the requested indicative ruling on the proposed Atkins claim.
2. Rule 60(b)
Even if Plaintiff's proposed Atkins claim was not barred by ADEPA, it would fail on substantive grounds because Plaintiff's proposed claim would not satisfy the requirements of Rule 60(b).
a. Excusable Neglect
The determination of whether neglect is "excusable" is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997), quoting Pioneer Inv. Servs., Co., v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). But a motion for reconsideration is not the proper mechanism to raise arguments that could reasonably have been presented earlier in litigation. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); accord, O'Neal v. SmithKline Beecham Corp., No. CIV S-06-1063 FCD/DAD, 2008 WL 1721891 at *2 (E.D. Cal. April 10, 2008).
The Court finds that the equities do not weigh in Petitioner's favor because he does not demonstrate a colorable Atkins claim. Atkins announced a new rule of constitutional law retroactively applicable to cases that, like Petitioner's, were then pending collateral review. Ybarra v. Baker, 2012 WL 5818136 at *3 (D.Nev. 2012, citing In re Holladay, 331 F.3d 1169, 1172-73 (11th Cir. 2003).
The Supreme Court in Atkins did not provide a federal law definition of "mental retardation." Instead, states were left with "the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Atkins, 536 U.S. at 317; see also Schriro v. Smith, 546 U.S. 6, 6-8 (2005) (summarily vacating a Ninth Circuit order remanding a habeas petition to the Arizona courts for a jury to make the Atkins determination, and emphasizing that Atkins left enforcement to the states).
California, defines "intellectual disability" under Atkins as "the condition of significantly sub average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before 18 years of age." California Penal Code § 1376.
Petitioner argues evidence in the record that he suffered "cognitive and neuropsychological deficits and probably brain dysfunction" based on toluene abuse, (State Habeas Exhibit 12, 1993 Declaration of Dr. Dale G. Watson, ¶¶ 8-12), and "significant learning disabilities and very severe attention/concentration deficits (in the mildly retarded range)." (Id.) But Petitioner has not demonstrated that this evidence, which was not offered or developed in support of an Atkins claim, could support a colorable intellectual disability under section 1376 standards. See In re Hawthorne, 35 Cal.4th 40, 49 (2005) (mental retardation is a question of fact, assessing overall capacity based on consideration of all the available evidence).
Respondent argues as much, pointing to evidence of Petitioner's educational and employment background (CT Vol. III at 512-13) and institutional background (State Habeas Exhibit 2, CRC Records of Richard Galvan Montiel), that suggests Petitioner was not intellectually disabled under section 1376. Respondent also notes the 1986 penalty phase retrial testimony of defense psychiatrist, Dr. Louis Nuernberger, that Petitioner had "no gross mental disorder apart from drug-induced toxic dementia." Montiel, 5 Cal. 4th at 901-02.
Given the sparse and equivocal evidentiary record and the noted absence of any state court adjudication of an Eighth Amendment claim under Atkins, the Court is not persuaded that Petitioner could raise a colorable constitutional claim under Atkins.
Nor can the Court discern "new or different facts or circumstances" supporting relief which did not exist at the time the Court entered final judgment. Local Rule 230(j).
Clearly, Petitioner's former counsel were aware of Atkins, citing it in support of amended petition claims that California's death penalty statute is unconstitutional on grounds it lacks proportionality review, (ECF No. 225 at 121:1-2 ), and denies equal protection. (Id., at 129:22.) Petitioner has not demonstrated that counsel's failure to raise an Eighth Amendment claim under Atkins was the result of attorney neglect rather than legal judgment and tactics. See e.g., Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (counsel's failure to make a futile motion is not ineffective assistance); Noland v. Flohr Metal Fabricators, Inc., 104 F.R.D. 83, 87 (D. Alaska 1984) ("Relief under Rule 60(b)(1) is not generally appropriate where a party . . . takes deliberate action with negative or unfortunate consequences.")
Petitioner also fails to demonstrate that an Eighth Amendment Atkins claim was ripe for review. The state had not (and has not) issued a warrant for Petitioner's execution. See Stewart v. Martinez-Villareal, 523 U.S. 637, 640 (1998) (claim under Ford v. Wainwright, 477 U.S. 399 (1986), premature where execution not scheduled).
For the reasons stated, the Court cannot conclude that upon remand it would grant Petitioner's proposed Rule 60(b)(1) motion for relief from judgment, or that such a motion raises a substantial issue. See e.g., Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir. 2012) ("In the final analysis, however, . . . Lopez's underlying claim does not present a compelling reason to reopen the case, because that claim is not a substantial one"); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) ("A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "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.").
b. Interests of Justice
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. It is to be used "sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.") Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id.
Here, for the reasons discussed, Petitioner has not demonstrated extraordinary circumstances. Significantly, he has not shown the November 26, 2014 judgment is erroneous and if left standing prevents the merits of a colorable Atkins claim from being heard. See Phelps v. Alameida, 569 F.3d 1120, 1140 (9th Cir. 2009) ("a central purpose of Rule 60(b) is to correct erroneous legal judgments that, if left uncorrected, would prevent the true merits of a petitioner's constitutional claims from ever being heard."). Nor can Petitioner show extraordinary circumstance merely by arguing that the holding in Atkins is a new rule of constitutional law. See In re Holladay, 331 F.3d at 1172-73 (to file a second or successive petition based on Atkins, Petitioner also must demonstrate that there is a reasonable likelihood that he is in fact mentally retarded).
Similarly, ineffective assistance of post-conviction counsel, even if established, could not alone be a basis for showing exceptional circumstances under Rule 60(b)(6). See Lopez v. Ryan, 678 F.3d 1131, 1136 (9th Cir. 2012); Cook v. Ryan, No. CV-97-00146-PHX-RCB, 2012 WL 2798789, at *6 (D.Ariz. Jul. 9, 2012) (concluding that the change in law heralded by Martinez v. Ryan, 132 S. Ct. 1309 (2012) was a remarkable, albeit limited, development weighing slightly in favor of 60(b)(6) relief).
III.
ORDER
For the reasons stated, IT IS HEREBY ORDERED that:
1. The hearing on Petitioner's motion for indicative ruling set for August 11, 2015 is VACATED, andIT IS SO ORDERED.
2. Petitioner's motion for indicative ruling (ECF No. 239) is DENIED without prejudice.
Dated: August 10 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE