Filed: Nov. 25, 2015
Latest Update: Nov. 25, 2015
Summary: ORDER MORRISON C. ENGLAND, Jr. , Chief District Judge . Petitioner is a state prisoner proceeding pro se with a habeas corpus action filed pursuant to 28 U.S.C. 2254. Pending before the Court is Petitioner's Motion for Reconsideration (ECF No. 63), which the Court construes as a motion for relief under Federal Rule of Civil Procedure 60(b). Respondent has filed an opposition to the motion, and petitioner has filed a reply. PROCEDURAL HISTORY In 2006, Petitioner filed a petition for a wr
Summary: ORDER MORRISON C. ENGLAND, Jr. , Chief District Judge . Petitioner is a state prisoner proceeding pro se with a habeas corpus action filed pursuant to 28 U.S.C. 2254. Pending before the Court is Petitioner's Motion for Reconsideration (ECF No. 63), which the Court construes as a motion for relief under Federal Rule of Civil Procedure 60(b). Respondent has filed an opposition to the motion, and petitioner has filed a reply. PROCEDURAL HISTORY In 2006, Petitioner filed a petition for a wri..
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ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
Petitioner is a state prisoner proceeding pro se with a habeas corpus action filed pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's Motion for Reconsideration (ECF No. 63), which the Court construes as a motion for relief under Federal Rule of Civil Procedure 60(b). Respondent has filed an opposition to the motion, and petitioner has filed a reply.
PROCEDURAL HISTORY
In 2006, Petitioner filed a petition for a writ of habeas corpus challenging his conviction for robbery and burglary. ECF No. 1. On July 15, 2008, the assigned Magistrate Judge issued Findings and Recommendations, recommending that Respondent's motion to dismiss the petition as time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA") be granted. ECF No. 48. On August 22, 2008, the assigned District Judge adopted those Findings and Recommendations in full, granted Respondent's motion to dismiss, and closed this habeas action. ECF No. 52. Shortly thereafter, the assigned District Judge denied Petitioner's request for a certificate of appealability. The Ninth Circuit Court of Appeals also denied petitioner's request for a certificate of appealability. Now, more than six years later, petitioner has filed the pending Rule 60(b) motion in which he appears to challenge the constitutionality of AEDPA.
DISCUSSION
Under Rule 12 of the Rules Governing Section 2254 Cases, district courts may apply the Federal Rules of Civil Procedure provided they are not inconsistent with the Rules Governing Section 2254 Cases or any statutory provisions. Rule 60(b) of the Federal Rules of Civil Procedure provides:
On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (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); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . .; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Petitioner's Rule 60(b) Motion is untimely. Insofar as Petitioner seeks relief under Rule 60(b)(1), (2), or (3), his Motion is untimely; he should have filed his motion "no more than a year after the entry of judgment or order of the date of the proceeding." Fed. R. Civ. P. 60(c). Insofar as Petitioner seeks relief under Rule 60(b)(4), (5), or (6), he should have filed his motion within "a reasonable time." Id. Petitioner unduly delayed more than six years before filing the pending Motion and has offered no explanation to the Court for this delay. See Hammer v. Drago (In re Hammer), 940 F.2d 524, 526 (9th Cir. 1991) (finding unexcused two-year delay in filing of Rule 60(b) motion was unreasonable). Accordingly, Petitioner's Motion is DENIED as untimely.
OTHER MATTERS
Also pending before the court is Petitioner's Motion for Appointment of Counsel. ECF No. 64. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In light of the discussion above, the Court does not find that the interests of justice would be served by the appointment of counsel.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's Motion pursuant to Rule 60(b) (ECF No. 63) is DENIED;
2. Petitioner's Motion for Appointment of Counsel (ECF No. 64) is DENIED; and
3. The Court will not issue any further orders in response to future filings.
IT IS SO ORDERED.
