Opinion
CV-14-00409-PHX-GMS (MHB)
11-14-2022
Stephen Edward May, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT COURT:
ORDER
Honorable Michelle H. Bums, United States Magistrate Judge.
Petitioner Stephen Edward May, through counsel, has filed a Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60(b) (Doc. 105). Respondents have filed a Response (Doc. 108) and Petitioner has filed a Reply (Doc. 111).
BACKGROUND
The procedural history of this matter has been thoroughly discussed both in this Court and in proceedings before the Ninth Circuit Court of Appeals. As such, it will not be repeated in similar detail here. Briefly, and as pertinent to the instant Motion, in March 2017, the district court granted habeas relief and subsequently ordered that Petitioner be released from custody. (Doc. 70.) After Petitioner's release, Respondents filed a Notice of Appeal to the Ninth Circuit Court of Appeals. (Doc. 72.) Then, on April 27, 2017, the district court granted the parties' Stipulations Regarding Release Conditions During the Pendency of Respondents' Appeal, and a Signature Bond for Appearance of Petitioner Pending Appeal was filed on June 30, 2017. (Docs. 82, 87.)
After briefing was completed, the Ninth Circuit affirmed the district court's decision. See May v. Ryan, 766 Fed.Appx. 505, 509 (9th Cir. 2019). Thereafter, Respondents filed petitions for rehearing and rehearing en banc and, in March 2020, the Ninth Circuit issued an Opinion and accompanying Memorandum reversing the district court's grant of habeas relief and rejecting Petitioner's alternative grounds for affirmance. See May v. Shinn, 954 F.3d 1194 (9th Cir. 2020); May v. Ryan, 807 Fed.Appx. 632 (9th Cir. 2020). Petitioner's subsequent petitions for rehearing and rehearing en banc were denied in September 2020, and his petition for writ of certiorari was denied in March 2021. The formal Mandate issued on March 30, 2021. (Doc. 91.)
Notably, in his second brief of cross-appeal, Petitioner argued that the appeal is moot and the court failed to have jurisdiction over the habeas proceeding because (1) he had been released from custody, (2) the State did not obtain a stay of the Judgment, and (3) he no longer had continuing collateral consequences of a wrongful conviction.
As part of its Memorandum rejecting Petitioner's alternative grounds for affirmance, the Ninth Circuit stated, “We disagree with May that this appeal is moot.” May, 807 Fed.Appx. at 636 n.4.
On April 1, 2021, Respondents filed an Unopposed Motion for Order Requiring Petitioner to Appear before the Court. (Doc. 92.) Because appellate proceedings on the matter had concluded, and Petitioner's convictions and sentences were affirmed, Respondents sought to effectuate Petitioner's transfer back to the custody of the State authorities. The Court granted the Motion, and a hearing was held on May 17, 2021, remanding Petitioner into custody. (Docs. 94, 101.) Then, on June 21, 2021, “[p]ursuant to the Mandate and the Unopposed Motion for Order Requiring Petitioner to Appear,” and all proceedings in this matter having concluded, the Court issued an Order directing the Clerk of Court to terminate the case. (Doc. 103.)
Eight months later, in the Ninth Circuit Court of Appeals, Petitioner filed a motion to recall the March 30, 2021 Mandate, arguing that the entire proceeding from the beginning was void for lack of subject matter jurisdiction. Specifically, Petitioner argued that the federal courts lost jurisdiction over this case on March 29, 2017, when the State released Petitioner from custody pursuant to the district court's Order.
On June 10, 2022, the Ninth Circuit denied Petitioner's motion stating, in pertinent part:
May's motion to recall the mandate (Dkt. No. 135) is DENIED. “[M]otions that assert a judgment is void because of a jurisdictional defect generally” must show that “the court that rendered judgment lacked even an ‘arguable basis' for jurisdiction.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (citations omitted). May has not met that standard in arguing that the statutory “in-custody” requirement was unsatisfied. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Nor do the additional details provided in the motion and accompanying exhibits demonstrate that this Court's holding on mootness lacked an arguable basis. Kernan v. Cuero, 138 S.Ct. 4, 7 (2017) (per curiam).May v. Shinn, 37 F.4th 552 (9th Cir. 2022).
Petitioner's subsequent July 26, 2022 petitions for rehearing and rehearing en banc were denied on August 19, 2022. Thereafter, the Ninth Circuit denied Petitioner's motion for appointment of CJR counsel to file petition for writ of certiorari. On October 31, 2022, the Ninth Circuit docket reflects that a letter was filed from the Supreme Court of the United States indicating that Justice Kagan has extended the time within which to file a petition for a writ of certiorari to January 16, 2023.
DISCUSSION
In his Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60(b), Petitioner moves for relief from the final order entered by the Court on June 21, 2021, and related orders -- requiring Petitioner to appear (Doc. 94), remanding Petitioner into custody (Doc. 101), and directing the Clerk to terminate this case (Doc. 103). Petitioner claims he is entitled to relief under Rule 60(b)(1) based upon the district court's mistake of law in directing Petitioner to appear in federal court and remanding him into custody when the proceeding in this Court was void for lack of subject matter jurisdiction. Petitioner argues that this Court lost jurisdiction once Petitioner was released from custody pursuant to the district court's March 2017 Order.
“Federal Rule of Civil Procedure 60(b) permits ‘a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances.'” Kemp v. United States, 142 S.Ct. 1856, 1861 (2022) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)). The rule “provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances.” Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992) (quoting Ben Sager Chem. Int'l, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). “Under Rule 60(b)(1), a party may seek relief based on ‘mistake, inadvertence, surprise, or excusable neglect.'” Kemp, 142 S.Ct. at 1861. “[A] ‘mistake' under Rule 60(b)(1) includes a judge's errors of law.” Id. at 1861-62. However, “a motion for reconsideration 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.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). “Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court.” Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
This is the third time Petitioner has argued that either this Court and/or the Ninth Circuit lacked jurisdiction over this matter because Petitioner was released from custody pursuant to the district court's March 2017 Order. Specifically, in his second brief on crossappeal, Petitioner argued “this appeal is moot and the Court does not have jurisdiction over this habeas proceeding because (1) he has been released from custody, (2) the State did not obtain a stay of the Judgment, and (3) he no longer has continuing collateral consequences of a wrongful conviction. .. Stephen was released from State custody forthwith .. . The Court subsequently required a signature bond and notification when Stephen travels out-of-state .. . But, there are no collateral consequences from the vacated conviction.” Then, in his motion to recall the mandate, Petitioner argued that “the entire proceeding in [the Ninth Circuit] is, and was from the beginning, void for lack of subject matter jurisdiction. .. Specifically, this motion challenges the jurisdiction of this Court. Once Petitioner was unconditionally released from all state confinement, the federal courts were divested of jurisdiction.” And, in the instant Motion, Petitioner argues that this Court lost jurisdiction once Petitioner was released from custody pursuant to the district court's March 2017 Order.
It is well settled that “‘[w]hen a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court. '” United States v. Luong, 627 F.3d 1306, 1309 (9th Cir. 2010) (quoting Firth v. United States, 554 F.2d 990, 993 (9th Cir. 1977)). Stated differently, all issues decided on appeal are “‘considered as finally settled,'” and the district court “‘is bound by the decree as the law of the case, and must carry it into execution according to the mandate.'” United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56 (1895)). Under the rule of mandate, the Court “cannot vary [from that decree], or examine it for any other purpose than execution; or give any other or further relief[.]” Thrasher, 483 F.3d at 981. Violation of the rule of mandate is a jurisdictional error. See Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012); Thrasher, 483 F.3d at 982.
Similarly, under the “law of the case” doctrine, “a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.) (cert. denied 508 U.S. 951 (1993)). For the doctrine to apply, the issue in question must have been decided explicitly or by necessary implication in the previous disposition. See Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). A court may have discretion to depart from the law of the case where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of the case absent one of the requisite conditions constitutes an abuse of discretion. See Thomas, 983 F.2d at 155.
The record reflects that on March 27, 2020, as part of its Memorandum decision reversing the district court's grant of habeas corpus, the Ninth Circuit addressed Petitioner's argument that “this appeal is moot and the Court does not have jurisdiction over this habeas proceeding” because “Stephen was released from State custody forthwith.” The court stated summarily, “We disagree with May that this appeal is moot.” May, 807 Fed.Appx. at 636 n.4. The formal Mandate reversing the district court's grant of habeas relief issued on March 30, 2021. (Doc. 91.)
After the Mandate issued, the Ninth Circuit again addressed Petitioner's contention that the entire habeas proceeding was void for lack of jurisdiction because Petitioner was unconditionally released from all state confinement. The court denied Petitioner's motion to recall the mandate finding that Petitioner failed to demonstrate that the Ninth Circuit “lacked even an ‘arguable basis' for jurisdiction” in alleging that the statutory “in-custody” requirement was unsatisfied.
Petitioner attempts to distinguish the argument he asserts in the instant Motion stating that new counsel recently identified that the federal courts lost jurisdiction over this case on March 29, 2017, when the State released Petitioner pursuant to the district court's Order. Petitioner states that this Motion relates to the district court's subject matter jurisdiction to remand Petitioner -- not the Ninth Circuit's jurisdiction to vacate Judge Wake's decision. The Court is not persuaded.
While a district court has no authority to depart from matters settled by an appellate decision, see Thrasher, 483 F.3d at 982, the “rule of mandate allows a lower court to decide anything not foreclosed by the mandate.” Herrington, 12 F.3d at 904; see also Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986) (Although the mandate of an appellate court forecloses the lower court from reconsidering matters determined in the appellate court, it “leaves to the district court any issue not expressly or impliedly disposed of on appeal.”). As noted previously, on two different occasions in Ninth Circuit, Petitioner has raised the same argument based on the same set of circumstances - the federal court's lack of jurisdiction based the district court's grant of habeas relief and Petitioner's subsequent release from custody. The Court fails to find a distinction between the issues raised in the Ninth Circuit and the issue he now raises in his Rule 60(b) Motion.
Accordingly, the Ninth Circuit having previously resolved Petitioner's jurisdictional claim, and Petitioner failing to raise any new or additional argument not resolved or foreclosed by the Ninth Circuit, the mandate rule and law of the case compel the conclusion that this Court is precluded from considering the same argument raised in Petitioner's Rule 60(b) Motion for Relief. See Thrasher, 483 F.3d at 982; see also U.S. v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case”); DeWeerth v. Baldinger, 38 F.3d 1266, 1270 (2d Cir. 1994) (“a district court does not have jurisdiction to alter an appellate ruling where the appellate court has already considered and rejected the basis for the movant's Rule 60(b) motion”).
CONCLUSION
Having determined that this Court is precluded from considering the argument raised in Petitioner's Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60(b) (Doc. 105), the Court will recommend that Petitioner's Motion for Relief be denied.
IT IS THEREFORE RECOMMENDED that Petitioner's Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60(b) (Doc. 105) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.