Soto-Valdez v. Adams

Filing 19

ORDER, United States Magistrate Judge Anderson's Report and Recommendation 12 is adopted; accordingly, Petitioner Castulo Soto-Valdez's Motion for Relief from Judgment Under Rule 60(b)(6) 1 is denied; Petitioner Castulo Soto-Valdez' ;s Motion to Supplement Pending Rule 60(b) Motion with New Decision by the United States Supreme Court that Would Support Petitioner's Rule 60(b) Motion 11 is granted to the extent that the Court considered Petitioner's arguments therein; Petitioner Castulo Soto-Valdez's Motion to Supplement Pending Motion Under Rule 60(b)(6) with Recent Circuit Law 14 is granted to the extent that the Court considered Petitioner's arguments therein; Petitioner Castulo Soto-Vadlez's Motion for Disposition on Pending Motion Under Rule 60(b)(6) 18 is denied as moot. Signed by Senior Judge Robert C Broomfield on 9/18/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,
vs.
Castulo Soto-Valdez,
Defendant/Movant.

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No. CV-99-1591-PHX-RCB(LOA)
O R D E R

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Introduction

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Currently pending before the court is the Report and

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Recommendation (“R & R”) of the Honorable United States

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Magistrate Judge Lawrence O. Anderson (“the Magistrate

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Judge”), wherein he recommends: (1) denying movant’s Motion

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for Relief from Judgment under Rule 60(b)(6) (Doc. 1);

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granting movant’s Motion to Supplement his Rule 60(b)(6)

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(Doc. 11); and denying a Certification of Appealability

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(“COA”) and leave to proceed in forma pauperis on appeal.

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R & R (Doc. 12) at 7:16-24.

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Movant pro se, Castulo Soto-

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Valdez (“Valdez”1), timely objected to the R & R. Also pending

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before the court is the movant’s second motion to supplement

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(Doc. 14), based upon, inter alia, two cases decided after

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the issuance of the R & R.

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movant’s “Motion for Disposition” (Doc. 18).

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The final pending matter is the

There being no objections to the R & R’s factual

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recitation, the court adopts that background as if fully set

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forth herein.

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convenience though, the court reiterates those facts bearing

See R & R (Doc. 12) at 1:18-3:22.

For

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most heavily on the pending R & R.

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plaintiff’s motion to supplement, filed after the issuance of

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the R & R, also are set forth below.

The facts relevant to

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Movant Valdez is serving a 360 month sentence for a

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conviction for conspiring to distribute and possess with

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intent to distribute methamphetamine.

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his then attorney, Colin Jon Kooyumjian, appealed that

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conviction.

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the Ninth Circuit specifically, “decline[d] to consider

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[Valdez’s] ineffective assistance of counsel [(“IAC”)]

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claim,” on the basis that it “should be resolved in a

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separate habeas corpus proceeding.”

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Valdez, 191 F.3d 462, 1999 WL 701896, at *1 (9th Cir. 1999)

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(unpublished).

Although it affirmed the movant’s conviction,

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The movant, through

United States v. Soto-

Background
I. Habeas Corpus Motion
Presciently, just a few days prior to the issuance of

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When referring to him by name, as does the movant, the court will
refer to Mr. Soto-Valdez as Valdez.

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that decision, on September 3, 1999, attorney Kooyumjian,

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filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside,

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or Correct sentence, asserting an IAC claim and prosecutorial

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misconduct.

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The IAC claim was predicated upon trial counsel’s alleged

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failure to listen to and obtain a voice analysis of wiretaps

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purporting to be conversations between him and other

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conspirators.

9

R & R (Doc. 12) at 3:3-9 (citation omitted).

See CR2 Doc. 1210 at 1:26-2:1.

After additional briefing and an evidentiary hearing on

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the IAC claim, the Magistrate Judge recommended denying the

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section 2255 petition in its entirety. CR Doc. 1206.

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Accepting the R & R, on January 8, 2001, this court denied

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that petition; dismissed the case and entered judgment

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accordingly.

15

exh. A thereto at 9.

16

R & R (Doc. 12) at 3:15-16 (citation omitted); see also id.,

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exh. D thereto at 13.

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2001, this court filed a COA and an order to proceed in forma

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pauperis on appeal, finding that the movant “ha[d] made a

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substantial showing of the denial of a constitutional right

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with respect to the . . . [IAC] issue[] . . . , and no other

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issue.”

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because the movant did not file an opening brief, the Ninth

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Circuit dismissed his appeal on March 6, 2002.

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1), exh. F thereto at 17.

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. . .

See CR Docs. 1210 and 1211; and Mot. (Doc. 1),
Attorney Kooyumjian timely appealed.

Shortly thereafter, on February 28,

Mot. (Doc. 1), exh. C thereto at 12.

Ultimately,

Mot. (Doc.

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“CR” refers to the underlying criminal case, CR 95-320-PHX-RCB,
and items docketed therein.

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II.

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“Rule 60(b)(6)” Motion
Slightly more than nine years later, on February 7, 2011,

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the movant filed his self-styled “Motion for Relief from

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Judgment under Rule 60(b)(6)[.]” Mot. (Doc. 1) at 1 (emphasis

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omitted).

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establishing “extraordinary circumstances” warranting relief

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under that Rule.

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particular,

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“‘abandoned’” him by not timely filing an opening brief in

The movant advances two reasons purportedly

Only one is relevant at this juncture.3

In

the movant argues that attorney Kooyumjian

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the Ninth Circuit, resulting in the dismissal of his appeal,

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despite the issuance of a COA by this court as to movant’s

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ICA claim.

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movant is seeking to have the court vacate the judgment and

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order denying his section 2255 motion; “reopen the § 2255

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proceedings and reschedule a renewed evidentiary hearing[;]”

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and appoint counsel to represent him at that hearing.

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6.

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that judgment and “reenter [it] providing [him] with a

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renewed direct appeal from the denial of his § 2255 motion.”

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Id.

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Id. at 3.

In his Rule 60(b)(6) motion, the

Id. at

Alternatively, the movant requests that the court vacate

The United States counters that the court should deny the

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pending motion because the Ninth Circuit appeal divested this

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court of jurisdiction.

Further, the United States argues

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After the respondent submitted evidence establishing that
attorney Kooyumjian was eligible to practice law during the section 2255
proceedings, the movant abandoned his claim that Kooyumjian was not
authorized to practice law during that time. See R & R (Doc. 12) at 4:2223, n. 2. It was not until much later, in 2005, when Kooyumjian became
ineligible to practice law in California and then later, on January 14,
2010, he was disbarred for failing to pay an arbitration award. Id. at
4:24-25, n. 2.

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that this motion is untimely because it was not brought

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within a “reasonable time” as Rule 60(c)(1) requires.

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The movant retorts that this court “retains jurisdiction

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over the § 2255 proceedings” because “the integrity of the

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habeas proceedings” was “undermined[.]”

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and 5.

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this court had issued a COA as to the ICA claim, the Ninth

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Circuit dismissed the appeal because his lawyer did not file

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an opening brief.

Reply (Doc. 10) at 3

According to the movant, that occurred when, although

As a result, the movant maintains that he

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was deprived of the opportunity to pursue his IAC claim on

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appeal.

12 III.
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R & R
Rule 60(b) may not be used as a vehicle for circumventing

14 “the requirement that a successive habeas petition be
15 precertified by the court of appeals as falling within an
16 exception to the successive-petition bar.” Gonzalez v. Crosby,
17 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)
18 (citing § 2244(b)(3)).4
19 whether, under

Accordingly, the threshold issue is

Gonzalez, the movant’s Rule 60(b)(6) motion is

20 in fact a disguised § 2255 motion.

See Washington, 653 F.3d

21 at 1062; United States v. Buenrostro, 638 F.3d 720, 722 (9th
22 Cir. 2011).

Reasoning that “[u]nder Gonzalez, Movant’s

23 ‘assertion that his post-conviction counsel gave him
24 ineffective assistance in connection with his § 2255 motion
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“Although Gonzalez was limited to § 2254 cases, 545 U.S. at 529
n. 3, 125 S.Ct. 2641, [the Ninth Circuit] ha[s] held that its analysis is
equally applicable to § 2255 cases[]” such as the present one. See United
States v. Washington, 653 F.3d 1057, 1062 n. 6 (9th Cir. 2011) (citation
omitted), cert. denied, --- U.S. ----, 132 S.Ct. 1609, 182 L.Ed.2d 214
(2012).

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1 does not go to the integrity of the habeas proceedings but, in
2 effect, asks for a second chance to have the merits determined
3 favorably[,]’” the Magistrate Judge found the movant’s Rule
4 60(b)(6) motion to be “a disguised § 2255 motion[.]”

R & R

5 (Doc. 12) at 6:10-15 (quoting U.S. v. Bahna, 2010 WL 491658,
6 * 3 (C.D.Cal, Nov. 24, 2010)).

On that basis, the Magistrate

7 Judge recommended dismissal of the Rule 60(b)(6) motion for
8 lack of jurisdiction “to consider the merits . . . absent
9 authorization from the Ninth Circuit Court of Appeals pursuant
10 to 28 U.S.C. § 2255(h).”
11

Id. at 7:2-4 (citations omitted).

During the pendency of the movant’s 60(b)(6) motion

12 before the Magistrate Judge, the Supreme Court decided Maples
13 v. Thomas, --- U.S. ––-, 132 S.Ct. 912, 181 L.Ed.2d 807
14 (2012), holding “that abandonment by post-conviction counsel
15 could provide cause to excuse procedural default of a habeas
16 claim.”

Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012)

17 (citation omitted).

Shortly after the issuance of Maples, the

18 movant filed a motion “urg[ing] the [Magistrate Judge] to
19 consider” Maples as an “intervening . . . decision . . . right
20 on point with” his case.

Mot. (Doc. 11) at 2.

The Magistrate

21 Judge found that “Maples does not change the fact that the
22 Movant’s claim of ineffective assistance of § 2255 counsel is
23 not cognizable in a Rule 60(b)(6) motion.”
24 7:11-12.

R & R (Doc. 12) at

Nonetheless, the Magistrate Judge recommended

25 granting the motion to supplement “to the extent that the
26 Court considered whether Maples impacts the Rule 60(b)(6)
27 motion.”

Id. at 7:13-14.

28 . . .

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1 IV.

Objections

2

Objecting to the R & R, movant Valdez directly challenges

3 “the Magistrate’s finding that [the movant’s] Rule 60(b)(6)
4 motion is ‘a disguised § 2255 motion[.]’” Obj. (Doc. 13) at 2.
5 Arguing that under Gonzalez, his Rule 60(b)(6) motion “does
6 not challenge the merits of the judgment denying habeas
7 relief[,] nor does it raise a new claim[,]” the movant
8 maintains that this court “has jurisdiction to grant the
9 requested relief.”

Id. at 5.

In his objections, the movant

10 narrows the scope of relief which he is seeking.

Now, he is

11 seeking only what he originally termed his alternative form of
12 relief, i.e. vacatur of the judgment denying his section 2255
13 motion; “reent[ry]” of that judgment, which the movant
14 believes would “allow [him] to file a timely Notice of Appeal
15 and take a new appeal to which he is entitled.”
16

Id. at 6.

Additionally, the movant broadly contends that this court

17 has the authority under the All Writs Act, 28 U.S.C. § 1651,
18 to provide the requested relief, but he does not elaborate.
19 Id. at 6, footnote.

“The All Writs Act authorizes federal

20 courts to issue all writs necessary and appropriate in aid of
21 jurisdiction and agreeable to usages and principles of law.
22 The writs are extraordinary writs and as such should be
23 reserved for really extraordinary causes.”

Samson v. NAMA

24 Holdings, LLC, 637 F.3d 915, 936 n. 93 (9th Cir. 2011)
25 (internal quotation marks and citation omitted).
26

Insofar as his motion to supplement is concerned, the

27 movant’s objections include a selective quote from Maples, but
28 nothing more.

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1

Discussion

2 I. Report & Recommendation
3

A.

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The movant’s specific objection to the finding that his

Standard of Review

5 Rule 60(b)(6) motion is a disguised section 2255 motion
6 requires de novo review.

See 28 U.S.C. § 636(b)(1) (“A judge

7 . . . shall make a de novo determination of those portions of
8 the report or specified proposed findings or recommendation to
9 which objection is made.”); see also Wang v. Masaitis, 416
10 F.3d 992, 1000 n. 13 (9th Cir. 2005) (citation omitted) (“Of
11 course, de novo review of a R & R is only required when an
12 objection is made to the R & R[.]”); United States v. Reyna13 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) emphasis in
14 original) (Section

636(b)(1) “makes it clear that the

15 district judge must review the magistrate judge’s findings and
16 recommendations de novo if objection is made, but not
17 otherwise.”)

In conducting such a review, “[a]lthough a de

18 novo hearing is not necessary, the district court must arrive
19 at its own independent conclusion about those portions of the
20 magistrate judge’s findings or recommendations to which a
21 party objects.”

Olson v. Lemos, 2008 WL 782724, at *1

22 (E.D.Cal. 2008) Id. (citing United States v. Remsing, 874 F.2d
23 614, 616 (9th Cir. 1989)).

Thus, as it must, this “reviewing

24 court [is] not defer[ring] to the [Magistrate Judge’s] ruling”
25 that the movant’s Rule 60(b)(6) motion is a disguised section
26 2255 motion, “but [is] freely consider[ing] the matter anew,
27 as if no decision had been rendered below.”

See Dawson v.

28 Marshall, 561 F.3d 930, 933 (9th Cir. 2009) (internal

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1 quotations and citation omitted) (emphasis added).
2

B.

3
4

Jurisdiction
1. Affect of Appeal

Based solely upon Moroyoqui v. United States, 570 F.2d

5 862 (9th Cir. 1977), the United States contends that “[b]ecause
6 of the Appeal, this Court is without jurisdiction to hear this
7 matter.”

Resp. (Doc. 3) at 4:10-11.

This argument is flawed.

8 Critically, the United States is overlooking the Ninth
9 Circuit’s dismissal of the movant’s appeal well before the
10 filing of the present motion.

Admittedly, “‘[t]he filing of a

11 notice of appeal . . . confers jurisdiction on the court of
12 appeals and divests the district court of its control over
13 those aspects of the case involved in the appeal[.]’” Small ex
14 rel. NLRB v. Operative Plasterers’ & Cement Masons’ Int’l
15 Assoc., 611 F.3d 483, 489 (9th Cir. 2010) (quoting Griggs v.
16 Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400,
17 74 L.Ed.2d 225 (1982) (per curiam)).

However, on March 6,

18 2001, nearly ten years prior to the filing of the pending
19 motion, the Ninth Circuit dismissed the movant’s appeal and
20 issued the mandate, thus restoring jurisdiction to this court.
21 See Delman v. Barclay Hotel, LLC, 2009 WL 424345, at *2
22 (C.D.Cal. Feb. 18, 2009) (citing Sgaraglino v. State Farm Fire
23 & Cas. Co., 896 F.2d 420, 421 (9th Cir. 1990) (“[O]nce an
24 appellate mandate is issued, the district court reacquires
25 jurisdiction.”)
26

Primarily because of that dismissal, the United States

27 fares no better by relying upon Moroyoqui.

Basically,

28 Moroyoqui stands for the proposition that once a petitioner

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1 files an appeal of an appealable order, such as a double
2 jeopardy claim, that filing “divests the district court of
3 jurisdiction to proceed to trial.”

United States v. Bhatia,

4 2007 WL 2795066, at *1 (N.D.Cal. Sept. 26, 2007) (citing,
5 inter alia, Moroyoqui, 570 F.2d at 864).

Obviously, Moroyoqui

6 has no place in this court’s jurisdiction analysis where the
7 appeal has been dismissed and the mandate issued.

Despite

8 these shortcomings in the United States’ argument, as will
9 soon become evident, the court agrees that it lacks
10 jurisdiction to entertain the movant’s Rule 60(b)(6) motion,
11 but for entirely different reasons than the United States
12 advances.
13
14

2.

Second or Successive Petition?

The Anti–Terrorism and Effective Death Penalty Act of

15 1996 (“AEDPA”) generally limits petitioners to one section
16 2255 motion.

Thus, a petitioner “may not bring a ‘second or

17 successive motion’ unless . . . the exacting standards of 28
18 U.S.C. § 2255(h)[]”5 are met.

Washington, 653 F.3d at 1059.

19 To avoid having to comply with “the exacting standards” of
20 section 2255(h), “petitioners often attempt to characterize
21 their motions in a way that will avoid the strictures of” that
22 statute.

Id.

For example, as did Valdez, a petitioner may

23 “characterize [his] pleading as being a motion under Rule
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“This section provides that such a motion cannot be considered
unless it has first been certified by the court of appeals to contain
either ‘(1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense,’ or ‘(2) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.’” Washington, 653 F.3d at 1059 (quoting 28
U.S.C. § 2255(h)).

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1 60(b) . . . , which ‘allows a party to seek relief from a
2 final judgment, and request reopening of his case, under a
3 limited set of circumstances,’ . . . , including, as relevant
4 here, that extraordinary circumstances exist warranting relief
5 under subsection six of that Rule.

See id. (quoting Gonzalez,

6 545 U.S. at 528, 125 S.Ct. 2641).
7

In that situation, it is incumbent upon the court to

8 decide whether the movant is bringing a legitimate Rule 60(b)
9 motion or whether the motion “should be treated as a disguised
10 § 2255 motion.”6

See id. at 1063 (citation omitted).

“Rule

11 60(b) has an unquestionably valid role to play in habeas
12 cases[,]”

Gonzalez, 545 U.S. at 534, 125 S.Ct. 2641; hence, a

13 court has jurisdiction to entertain a legitimate Rule 60(b)
14 motion.

At the same time, however, a court lacks jurisdiction

15 to entertain a disguised section 2255 motion unless the movant
16 “me[e]t[s] the stringent standard for presenting a second or
17 successive § 2255 motion.”

Washington, 653 F.3d at 1065

18 (citing 28 U.S.C. § 2255(h)); see also United States v. Allen,
19 157 F.3d 661, 664 (9th Cir. 1998) (district court lacked
20 jurisdiction to consider merits of petitioner’s claim because
21 he did not “request the requisite certification” from the
22
23

6

As the Ninth Circuit astutely observed in Harvest v. Castro, 531
F.3d 737 (9th Cir. 2008):

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If the motion seeking relief from the judgment
is, in reality, a successive petition, the motion
would be inconsistent with the [AEDPA]. . . .
Like the other Civil Rules, Rule 60 applies only
to the extent that [it is] not inconsistent with
any statutory provisions or [the habeas] rules[.]
Id. at 745 n. 5 (internal quotation marks and citations omitted).

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1 Ninth Circuit prior to filing his § 2255 motion, raising a
2 successive claim).
3

That said, “the Supreme Court has not adopted a bright-

4 line rule for distinguishing between a bona fide Rule 60(b)
5 motion and a disguised second or successive § 2255 motion[.]”
6 Id. at 1060.

Rather, in Gonzalez, the Supreme Court explained

7 that “when a Rule 60(b) motion attacks . . . some defect in
8 the integrity of the federal habeas proceedings[,]” such as
9 “[f]raud on the federal habeas court[,]” it is a valid Rule
10 60(b) motion.
11 S.Ct. 2641.

Gonzalez, 545 U.S. at 532 and 532 n.5, 125
A “defect in the integrity of the federal habeas

12 proceeding” can also be found in a “Rule 60(b) motion
13 contending that the district court erred in making a
14 procedural ruling, such as ‘failure to exhaust, procedural
15 default, or statute-of-limitations bar,’ that actually
16 ‘preclude[s] a merits determination.’”

Washington, 653 F.3d

17 at 1063 (quoting Gonzalez, 545 U.S. at 532 n. 4, 125 S.Ct.
18 2641).

So, for example, in Gonzalez, where the petitioner

19 challenged the district court’s ruling that his habeas
20 petition was time-barred, the Supreme Court held that his Rule
21 60(b) motion was not the equivalent of a second or successive
22 § 2254 petition.
23

However, “if the [purported Rule 60(b)] motion presents a

24 ‘claim,’ i.e., ‘an asserted federal basis for relief from a
25 . . . judgment of conviction,’ then it is, in substance, a new
26 request for relief on the merits and should be treated as a
27 disguised § 2255 motion.”
28 530, 125 S.Ct. 2641).

Id. (quoting Gonzalez, 545 U.S. at

Such “claims” can take a variety of

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1 forms, including a motion that “attacks the federal court’s
2 previous resolution of a claim on the merits[.]” Gonzalez, 545
3 U.S. at 532, 125 S.Ct. 2641 (footnote omitted) (emphasis in
4 original).

“On the merits” in this context “refer[s] . . . to

5 a determination that there exist or do not exist grounds
6 entitling a petitioner to habeas corpus relief[.]” Id. at 532
7 n. 4, 125 S.Ct. 2641.
8

The Supreme Court in Gonzalez “gave a number of examples

9 of . . . ‘claims’” which, if present in a Rule 60(b) motion,
10 are “in substance. . . a new request for relief on the merits
11 and should be treated as a disguised § 2255 motion.”
12 Washington, 653 F.3d at 1063 (citation omitted).

One such

13 claim, as the Supreme Court recognized, and which is of
14 particular significance here, is an “attack based on . . .
15 omissions” by habeas counsel[.]” See Gonzalez, 545 U.S. at
16 532 n. 5, 125 S.Ct. 2641 (citation omitted).

The reason such

17 attacks are deemed to be “claims,” which, in turn, should be
18 “treated as “disguised § 2255 motion[s]” is because
19 “ordinarily” such attacks “do[] not go to the integrity of the
20 [habeas] proceedings, but in effect ask[] for a second chance
21 to have the merits determined favorably.
22 added).

Id. (emphasis

Claims such as this are thus outside the purview of

23 Rule 60(b).
24

“[F]ocus[ing] on the substance” of Valdez’s motion,

25 Washington, 653 F.3d at 1063 (citing Gonzalez, 545 U.S. at
26 530-533, 125 S.Ct. 2641), persuades this court that his Rule
27 60(b)(6) motion is, actually, a disguised section 2255 motion.
28 Movant Valdez argues that the “integrity of [his] § 2255

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1 proceeding[]” was “compromised” because, even though this
2 court had granted a COA as to his IAC claim, the movant was
3 denied appellate review of that claim due to his habeas
4 counsel’s failure to file an opening brief, resulting in the
5 dismissal of the movant’s appeal.

See Mot. (Doc. 1) at 5.

On

6 that basis, the movant believes his reliance upon Rule
7 60(b)(6) is proper.
8

The Supreme Court’s explicit observation in Gonzalez that

9 “an attack based on . . . habeas counsel’s omissions does not
10 go to the integrity of the proceedings[]” forecloses Valdez’s
11 argument, however.

See Gonzalez, 545 U.S. at 532 n. 2, 125

12 S.Ct. 2641 (emphasis added).

Furthermore, as the following

13 discussion shows, since Gonzalez, “[f]ederal courts [have]
14 routinely hew[n] to this language in denying Rule 60(b)
15 motions . . . for lack of jurisdiction.”

See United States v.

16 Harris, 2010 WL 2231893, at *3 (S.D.Ala. June 2, 2010) (citing
17 cases).

What is more, as also will be seen, the fact that a

18 petitioner’s IAC claim is not addressed on appeal as a result
19 of some omission by habeas counsel, does not change this
20 result.

That is because courts have implicitly found that an

21 “on the merits” determination, as the Gonzalez Court defined
22 it, does not encompass appellate review of a district court’s
23 denial of a habeas petition, even when that court granted a
24 COA as to the ICA claim.
25

Because they are closely analogous to the present case,

26 Gray v. Mullin, 171 Fed.Appx. 741 (10th Cir. 2006)
27 (unpublished), and Post v. Bradshaw, 422 F.3d 419 (6th Cir.
28 2005), are particularly instructive.

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Gray is particularly so

1 because the absence of appellate review due to an omission by
2 habeas counsel, as here, did not prevent the Tenth Circuit
3 from finding that there had been a merits determination within
4 the meaning of Gonzalez.
5

In Gray, the district court denied the petitioner’s

6 original habeas petition and granted a COA as to his IAC
7 claim.

The petitioner was not afforded appellate review of

8 that denial, however, because of an omission by habeas
9 counsel.

His habeas counsel was under the mistaken belief

10 that the district court would transmit the entire record,
11 including the state court records, to the appellate court.
12

The Tenth Circuit affirmed the denial of Gray’s habeas

13 petition because his counsel did not provide a complete
14 appellate record.

Petitioner’s counsel sought rehearing and

15 leave to supplement the record.

In denying that relief, the

16 Tenth Circuit “not[ed] [that] it was not permitted . . .

to

17 grant rehearing based on attorney neglect, and that 28 U.S.C.
18 § 2254(j) prohibits habeas relief based on ineffective counsel
19 in state or federal collateral post-conviction proceedings.”
20 Id. at 743 (citation omitted).
21

Petitioner Gray resorted to Rule 60(b)(6).

In granting

22 that motion, the district court “vacated its original . . .
23 order. . . ; issued a new, verbatim order denying habeas
24 relief; and granted petitioner a certificate of
25 appealability.”

Id.

Vacating that order, the Tenth Circuit

26 held that the district court lacked “jurisdiction to grant the
27 motion or to reach the merits of petitioner’s claims.”

Id.

28 Strictly based upon Gonzalez, the Gray Court held that the

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1 petitioner’s Rule 60(b) motion was “an improper attempt to
2 file a second and successive habeas petition[.]” Id.
3

Distinguishing Gonzalez, the Tenth Circuit reasoned that

4 the district court’s procedural ruling therein “precluded a
5 merits analysis of the habeas claims by that court[,]” whereas
6 the “district court in [Gray] did rule on the merits of
7 petitioner’s habeas claims, and petitioner’s Rule 60(b) motion
8 unquestionably reassert[ed] the same substantive [IAC] claim
9 that he asserted in his § 2254 petition.”
10 original).

Id.

(emphasis in

Further, because the Supreme Court in Gonzalez

11 unequivocally declared that “‘an attack based on . . . habeas
12 counsel’s omissions ordinarily does not go to the integrity of
13 the proceedings,’” the Gray Court rejected the petitioner’s
14 argument “that he properly invoked Rule 60(b) to avoid a
15 fundamental miscarriage of justice so that his appeal could be
16 heard on the merits, [and] not be dismissed because of his
17 counsel’s failure to transmit the necessary record on appeal.”
18 Id. (quoting Gonzalez, 545 U.S. at ___, 125 S.Ct. 2641).
19

Given the similarities between Gray and the present case,

20 Gray’s reasoning applies with equal force here.

Just as in

21 Gray, this court denied the movant’s habeas motion and granted
22 a COA solely as to his IAC claim.

Also as in Gray, albeit for

23 a different reason, movant Valdez did not have appellate
24 review on the merits of his habeas motion alleging IAC.

And

25 finally, movant Valdez, as did petitioner Gray, is seeking to
26 have this court vacate its denial of his habeas motion so he
27 can pursue his appeal on the merits of his IAC claim.
28 makes clear, however, this court lacks jurisdiction to

- 16 -

As Gray

1 entertain the movant’s Rule 60(b)(6) motion because, under
2 these circumstances, it constitutes an impermissible second
3 and successive habeas motion.
4 Fed.Appx. 593, 595-96

See also Gurry v. McDaniel, 149

(9th Cir.

2005) (vacating district

5 court’s decision on the merits of petitioner’s Rule 60(b)
6 motion, because it was a successive habeas petition in that he
7 alleged, inter alia, an IAC claim with respect to his previous
8 habeas counsel).
9

Post is similarly instructive because it held that the

10 petitioner’s Rule 60(b)(6) motion was a second or successive
11 habeas petition, although, as here, it did not “attack the
12 district court’s substantive analysis of” its “prior dismissal
13 of [petitioner’s] habeas petition.”

Post, 422 F.3d at 424-

14 425. In his Rule 60(b)(6) motion, Post alleged “incompetent
15 and ineffective representation . . . during his federal post16 conviction collateral review” because his lawyer did not
17 pursue discovery, even though Post sought and obtained
18

district court approval for that discovery.

19

was “clear” to the Post Court that “whatever appellation [it]

20

might apply to counsel’s neglect[,]” the AEDPA did not allow

21
22
23
24
25
26
27
28

for relief.

Id.

Id. at 423. It

In finding Post’s motion to be a second or

successive habeas petition, the Court reasoned:
It makes no difference that the motion itself
does not attack the district court’s
substantive analysis of those claims but,
instead, purports to raise a defect in the
integrity of the habeas proceedings,
namely his counsel’s failure-after obtaining
leave to pursue discovery-actually to
undertake that discovery[.]

- 17 -

1 Id. at 424.

Continuing, the Court further reasoned: “[A]ll

2 that matters is that Post is ‘seek[ing] vindication of’ or
3 ‘advanc[ing]’ a claim by taking steps that lead inexorably to
4 a merits-based attack on the prior dismissal of his habeas
5 petition.”

Id. at 424-425 (quoting Gonzalez, 545 U.S. at 531-

6 532, 125 S.Ct. 2641).
7

That is precisely what movant Valdez is doing through his

8 Rule 60(b)(6) motion.

By seeking to vacate the denial of his

9 section 2255 motion alleging IAC, and allowing an appeal of
10 that denial, clearly the movant is taking “steps that lead
11 inexorably to a merits-based attack on the prior dismissal of
12 his habeas [motion].”

See id.

Gonzalez and its progeny

13 simply do not allow movant Valdez to circumvent section
14 2255(h)’s restrictions on the filing a second and successive
15 section 2255 habeas petition in that way.
16

This court’s holding is entirely consistent with other

17 courts within this District.

Relying upon Gonzalez and Post,

18 those courts likewise have held that claims of incompetent
19 habeas counsel do not challenge “some defect in the integrity
20 of the federal habeas proceedings[,]” but, rather, are
21 “‘claim[s]’ . . . attacking the federal court’s previous
22 resolution of a claim on the merits[.]” See Gonzalez, 545 U.S.
23 at 532 (footnote omitted)

(emphasis in original).

In Van

24 Adams v. Schriro, 2009 WL 89465 (D.Ariz. Jan. 14, 2009), a
25 capital case, among the asserted grounds for Rule 60(b) relief
26

was the petitioner’s claim that “he was not afforded competent

27

habeas counsel.”

28

citation omitted).

Id. at *1 (internal quotation marks and
During the habeas proceeding, the court

appointed an expert psychiatrist to examine petitioner and
- 18 -

1 make a competency determination in accordance with Rohan v.
2 Woodford, 334 F.3d 803 (9th Cir. 2003).7

Then District Court

3 Judge Murgia, rejected the petitioner’s argument “that his
4 allegations of Rohan incompetence and ineffective assistance
5 of habeas counsel challenge the integrity of the habeas
6 proceedings and therefore constitute[d] a basis for a proper
7 motion under Rule 60(b).”
8 also

Id. at *4 (footnote added); see

West v. Schriro, 2008 WL 4693393, *5 (D.Ariz. Oct. 20,

9 2008) (Rule 60(b) motion “based on habeas counsel’s failure to
10 obtain mental health evidence that Petitioner . . . wishe[d]
11 to present . . . to challenge” district court’s denial of his
12 IAC claim was “in essence” an improper “request to adjudicate
13 a successive petition”); United States v. Bahna, 2010 WL
14 4916584 (C.D.Cal. Nov. 24, 2010) (IAC claim against post15 conviction counsel did not “provide[] a cognizable basis for a
16 Rule 60(b) motion[,]” but was “in effect [a] habeas ‘claim[]’
17 to be litigated in accordance with the AEDPA[]”); United
18
19
20
21
22
23

States v. Buenrostro, 2008 WL 1925245, *4–5 (E.D.Cal. Apr. 30,
2008)[, aff’d, 638 F.2d 720 (9th Cir. 2011),] (Rule 60(b)
motion predicated on habeas counsel’s lack of diligence is, in
substance, a successive § 2255 motion cloaked in Rule 60(b)
rubric).

Courts outside this District have reached the same

conclusion.

See, e.g., Akemon v. Brunsman, 2008 WL 1766707,

24
25
26
27

7

In Rohan, the Ninth Circuit held that a prisoner “has a statutory
right to competence in his federal habeas proceedings,” with competence
defined as “the capacity to understand his position and to communicate
Just recently, the
rationally with counsel.” Rohan, 334 F.3d at 819.
Supreme Court abrogated Rohan. See Ryan v. Gonzales, —-- U.S. -—-, 133
S.Ct. 696, 184 L.Ed.2d 523 (2013).

28

- 19 -

1 *4 (S.D.Ohio Apr. 17, 2008) (“Petitioner . . . is unable to
2 prevail on any claim that his habeas counsel’s ineffectiveness
3 amounted to a defect in the integrity of the federal habeas
4 proceedings which may be considered by [the district court] as
5 a ground for granting relief under [Rule 60(b)]”) (internal
6 quotation marks omitted); United States v. Sowers, 2007 WL
7 2302426, *3 (M.D.Ala. Aug. 9, 2007) (where petitioner’s Rule
8 60(b) motion only challenged presentation of evidence by
9 habeas counsel and sought to present additional evidence in
10 support of original claim for relief, it did not affect
11 integrity of proceedings and was a second or successive habeas
12 petition).

After independently reviewing the movant’s self-

13 styled Rule 60(b)(6) motion, and based upon this great weight
14 of authority, it is abundantly clear, as the Magistrate Judge
15 recommended, that the court lacks jurisdiction to entertain
16 this motion because it is an impermissible second or
8
17 successive habeas petition.

Hence, it must be denied.

18

C.

Motion to Supplement

19

With respect to his motion to supplement, movant Valdez

20 did not provide any specific objections to the R & R’s
21 treatment of Maples.

Consequently, this court has no

22 obligation to review the Magistrate Judge’s recommendation in
23 that regard.

See

Gordon v. Ryan, 2012 WL 2572192, at *1

24
25
26
27

8

Indeed, in U.S. v. Soto-Valdez, 2009 WL
2009), the court foresaw the possibility “that any
petition which defendant files may be deemed a
petition which the [AEDPA] generally prohibits.”
omitted).

28

- 20 -

1311954 (D.Ariz. May 12,
subsequent habeas corpus
‘second or successive’
Id. at *2 n. 1 (citation

1 (July 2, 2012) (quoting Thomas v. Arn, 474 U.S. 140, 149, 106
2 S.Ct. 466, 88 L.Ed.2d 435 (1985) (emphasis added by Gordon
3 court)) (“[C]onstruing the Federal Magistrates Act, the
4 Supreme Court has found that that “‘statute does not on its
5 face require any review at all, by either the district court
6 or the court of appeals, of any issue that is not the subject
7 of an objection.’”)
8

The court hastens to add that even construing the

9 movant’s selective quotes from Maples as an objection, it is
10 meritless because the movant has not even attempted to show
11 that the Magistrate Judge’s recommendation was either “clearly
12 erroneous” or “contrary to law.”

See Ranza v. Nike, Inc.,

13 2013 WL 869522, at *2 (D.Or. March 7, 2013) (applying that
14 standard pursuant to section 636(b)(1)(A) to a magistrate
15 judge’s denial of plaintiff’s motion to supplement the
16 record).

Therefore, as did the Magistrate Judge, this court

17 finds that Maples does not change the analysis or the result
18 with respect to whether the movant’s “pleading labeled as a
19 Rule 60(b)[(6)]” includes a claim attacking his habeas
20 counsel’s omission, and as such “‘is in substance a successive
21 habeas petition and should be treated accordingly.’”

See

22 Delgado v. United States, 2012 WL 761594, at *3 (E.D.Cal.
23 March 8, 2012) (quoting Gonzalez, 545 U.S. at 531) (other
24 citation omitted).
25 II.

Post-R & R Motion

26

After the issuance of the R & R and the filing of the

27 movant’s objections thereto, Martinez v. Ryan, 566 U.S. 1, 132
28 S.Ct. 1309, 132 L.Ed.2d 272 (2012), and Mackey v. Hoffman, 682

- 21 -

1 F.3d 1247 (9th Cir. 2012), were decided.

Thereafter, the

2 movant filed a “motion to supplement” his Rule 60(b)(6)
3 motion.

Mot. (Doc. 14) at 1.

In that motion, movant Valdez

4 is seeking to have this court “consider” Martinez, Mackey and,
5 as he did previously, the Supreme Court’s decision in Maples,
6 132 S.Ct. 912.

Id. at 2.

Although not framed in this way, as

7 the court construes his motion, the movant is contending that
8 those three cases are tantamount to an intervening change in
9 law, which, in turn, constitutes an extraordinary circumstance
10 justifying relief from judgment pursuant to Fed.R.Civ.P.
11 60(b)(6).
12

The United States counters that none of those three cases

13 change the Magistrate Judge’s analysis, because they did not
14 “create additional claims cognizable” under Rule 60(b)(6).
15 Resp. (Doc. 16) at 3:1-3 (emphasis omitted).

As it did

16 originally, the United States again raises the issue of
17 timeliness.

By the United States’ calculations, Valdez did

18 not file his Rule 60(b)(6) motion until nine years after the
19 filing date for his opening brief in the Ninth Circuit.

Not

20 only that, but, as the United States stresses, Valdez did not
21 file his motion until five and a half years after learning
22 that attorney Kooyumjian was not entitled to practice law in
23 California.
24

To refute that timeliness argument, in his reply, movant

25 Valdez offers a litany of reasons, discussed herein, which he
26 claims are tantamount to “‘extraordinary circumstances’
27 [which] prevented [him] from taking timely action to challenge
28 the abandonment of his appeal by attorney . . . Kooyumjian.”

- 22 -

1 Reply (Doc. 17) at 3.
2
3

A.

Rule 60(b)(6)

Pursuant to Rule 60(b)’s catchall provision, a district

4 court may relieve a party from a final judgment, order, or
5 proceeding for “any other reason that justifies relief.”
6 Fed.R.Civ.P. 60(b)(6).

A motion brought pursuant to that Rule

7 “must be made within a reasonable time[.]” Fed.R.Civ.P. 60(c).
8 A movant seeking relief under Rule 60(b)(6) also must “show
9 ‘extraordinary circumstances’ justifying the reopening of a
10 final judgment.”

Gonzalez, 545 U.S. at 535.

In the present

11 case, even if the court were to conclude that movant Valdez
12
13

otherwise properly invoked Rule 60(b)(6), he has shown neither
timeliness nor extraordinary circumstances.
1.

14
15

Timeliness

Noting that movant Valdez’s appeal was dismissed on March

16 6, 2002, for failure to file his opening brief, the United
9
17 States points out that he waited almost nine years -– until

18 February 7, 2011 –- to file this motion.
19
20
21
22

The United States

further relies upon the May 13, 2005, letter from the State
Bar of California informing the movant that at that time Mr.
Kooyumjian’s was “not entitled to practice[]” law there.
(Doc. 1), exh. G thereto.

Mot.

Even with that knowledge, the

23
24
25
26
27
28

9

Actually, the United States indicates that this motion was filed “more
than nine years” late. Resp. (Doc. 3) at 5:22 (emphasis added). That calculation
is based upon the United States’ inaccurate assumption that “[t]he alleged failure
occurred on September 4, 2001[.]” Id. at 5:17-18. At one point the opening brief
was due on that date, but the movant was granted an extension so that his opening
brief and excerpts were due by November 5, 2001. U.S v Soto-Valdez, # 01-15427 (9th
Cir.) at 7 (August 20, 2001) and 8 (September 19, 2001). Of more import though is
that the alleged failure, as the United States later recognizes, was the dismissal
of the appeal for failure to perfect. That did not occur until March 6, 2002.
Thus, the more accurate date for this calculation is March 6, 2002, meaning this
motion was filed almost nine years late, not “more than nine years late[,]” as the
United States maintains. See Resp. (Doc. 3) at 5:22.

- 23 -

1 movant waited more than five and a half years from that date
2 before filing his Rule 60(b)(6) motion.

Based upon these two

3 events, the United States argues that this motion was not
4 brought within a “reasonable time” within the meaning of Rule
5 60(c)(1).
6

What constitutes a “reasonable time” involves a fact-

7 specific inquiry.

It “‘tak[es] into consideration the

8 interest in finality, the reason for delay, the practical
9 ability of the litigant to learn earlier of the grounds relied
10 upon, and prejudice to the other parties.’”

See Lemoge v.

th
11 United States, 587 F.3d 1188, 1197 (9 Cir. 2009) (quoting
th
12 Ashford v. Steuart, 657 F.2d 1053, 1055 (9 Cir. 1981)).

13 Whether viewed individually or collectively, movant Valdez’s
14 proffered reasons do not “demonstrate ‘that circumstances
15 beyond [his] control prevented timely action to protect its
16 interests.’”

Zurich Am. Ins. Co. v. Int’l Fibercom, Inc. (In

th
17 re Int’l Fibercom, Inc.), 503 F.3d 933, 941 (9 Cir. 2007)

18 (quoting U.S. v. Alpine Land & Reservoir Co., 984 F.2d 1047,
19

1049 (9th Cir. 1993)).

20

movant Valdez is not entitled to Rule 60(b) relief.

21

(emphasis added)(“relief under Rule 60(b) should only be

22
23
24

In the absence of such a showing,
See id.

granted where the moving party is able to” make such a
showing).
According to the movant, the “[f]irst and foremost”

25 factor excusing his delay in filing this motion is the
26 purported validity of his IAC claim against attorney
27 Kooyumjian.
28

See Reply (Doc. 10) at 6.

While the movant

places a great deal of significance on this factor, he does

- 24 -

1 not cite to any authority showing that the relative merits of
2 an underlying claim somehow excuse an otherwise untimely Rule
3 60(b)(6) motion.

The lack of authority to support that

4 proposition is not surprising given that the relative merits
5 is not among the factors courts consider in assessing what
6 constitutes a “reasonable time” for bringing such a motion.
7

In contrast, the facts and circumstances available to the

8 movant as early as 2005 are highly probative in ascertaining
9 the timeliness of this motion.

As his own exhibit shows, in

10 2005 the movant had concerns about attorney Kooyumjian’s
11 representation of him.

In a letter dated March 3, 2005, to

12 the State Bar of California movant Valdez alleged professional
13 misconduct against Kooyumjian.
14 thereto at 18.

See Mot. (Doc. 1), exh. G

The May 13, 2005, response informed the movant

15 of Mr. Kooyumjian’s “current status with the State Bar[;]” he
16 was “not entitled to practice[] law.

See id.

So by mid-May

17 2005, the movant knew or reasonably should have known that Mr.
18 Kooyumjian was not entitled to practice law in California.
19 Indeed, initially, when he filed this motion in February,
20 2011, movant Valdez relied upon that letter as the first of
21 two bases for seeking relief from judgment.
22

Additionally, because on approximately February 16, 2001,

23 the movant, among others, was provided with a copy of his
24 habeas notice of appeal, see Doc. 1212 (95-CR-320-PHX-RCB), he
25 knew or reasonably should have known that that notice had been
26 filed more than four years earlier.

These circumstances, at a

27 minimum, should have prompted movant Valdez to make some
28 inquiry, regardless of the source, as to the status of his

- 25 -

1 appeal; but he did not.

The record is void of any evidence

2 that at that time Valdez, or anyone on his behalf,

attempted

3 to contact his attorney, the Ninth Circuit, or this district
4 court.
5

The movant’s failure to take some action in 2005 is even

6 more puzzling given that by then he had some familiarity with
7 the length of the appellate process.

In 2005, the movant knew

8 or reasonably should have known that the Ninth Circuit had
9 affirmed his conviction approximately one year after the
10 filing of his notice of appeal.

Thus, in the movant’s

11 experience, albeit limited, hearing nothing about his habeas
12 appeal after approximately four years, should have prompted
13 him to make some inquiry or take some action.

This is all the

14 more so taking into account, as just discussed, that in mid15 May 2005 the movant was fully aware that his habeas appellate
16 counsel was no longer entitled to practice law in California.
17

Rather than pursuing the status of his appeal, or taking

18 any other action, the movant sat idly by for about two and a
19 half more years.

As the movant candidly acknowledges, “[i]t

20 was not until 2008, when [he] . . . obtained a copy of the
21 Docket Records from his case that he discovered that the
22 appeal from his § 2255 motion had been dismissed because no
10
23 opening brief had been filed on his behalf[.]”

Reply (Doc.

24 10) at 7. Even when armed with that additional knowledge,
25
26
27
28

10

The Ninth Circuit’s docket seems to corroborate that on January
7, 2008, it “[r]eceived [a] letter from pro se re: status of the case.”
U.S. v Soto-Valdez, # 98-10389 (9th Cir.)(Jan. 7, 2008) at 37. The Ninth
Circuit almost immediately responded by sending the
“[p]ublic docket
This docket entry is from plaintiff’s
sheet” on January 10, 2008. Id.
appeal in his criminal case, but seemingly he also was provided a copy of
the docket from his section 2255 appeal at this time.

- 26 -

1 movant Valdez did not file a Rule 60(b)(6) motion.
2

In an effort to explain his inaction in 2008, the movant

3 faults attorney Kooyumjian who allegedly “took all the records
4 of Valdez[’s] case[,]” and “never provided” them to Valdez.
5 Reply (Doc. 17) at 3; and Reply (Doc. 10) at 6.

Consequently,

6 the movant contends that it was not “until 2011[,]" after two
7 years of litigation, that he came into “possession of
8 sufficient records of this case that . . . allow[ed] him to
9 discover his claims[].”

Reply (Doc. 10) at 7.

More

10 specifically, the movant contends that he “discovered that
11 attorney . . . Kooyumjian had abandoned [the movant’s] appeal
12 without filing appellant’s brief.”
13

Id.

Regardless of how Mr. Kooyumjian’s conduct is

14 characterized, as just explained, however, three years
15 earlier, in 2008, the movant knew that his appeal had been
16 dismissed for failure to file an opening brief.

Thus, the

17 movant did not need to obtain his case records to confirm what
18 he already knew.

Moreover, the movant was very clear as to

19 why he wanted to obtain those records – not because of
20 anything pertaining to his appeal – but rather, to pursue an
21 actual innocence claim.

U.S. v. Soto-Valdez, 2009 WL 1311954,

22 at *2 (D.Ariz. May 12, 2009) (internal quotation marks,
23 citation and footnote omitted) (“Defendant asserts . . .

that

24 he needs access to the court's file to perfect[ ] . . . a
25 collateral attack raising an actual innocen[ce] claim[.]”) The
26

foregoing eviscerates the movant’s argument that it was not

27

until 2011 that he became aware that his attorney had not

28

filed an opening brief in the Ninth Circuit.

- 27 -

Movant Valdez

1 knew of that omission in 2008, as he admits.
2

Further endeavoring to show circumstances beyond his

3 control which prevented him from timely filing this motion,
4 the movant advises that he is a “Mexican Nationalist[,]” who
5 has limited English proficiency, and “no understanding of the
6 American federal justice system.”

Reply (Doc. 10) at 6.

7 Movant Valdez adds his lack of financial resources to hire “an
8 attorney to investigate his case or what happened to his
9 appeal[.]” Reply (Doc. 17) at 3.

Regrettably, limited English

10 proficiency and a lack of financial resources are not uncommon
11 among the prison population and, more importantly, do not
12 factor into the court’s reasonableness inquiry.
13

Despite these claimed limitations, in 2008, movant Valdez

14 was able to obtain “the assistance of an Inmate Law Clerk[,]”
15 which is how he learned that his habeas appeal had been
16 dismissed for failure to prosecute.

See Reply (Doc. 10) at 7.

17 Significantly, the movant does not explain why he waited until
18 2008, nearly seven years from the filing of his notice of
19 appeal, to obtain such assistance. Additionally, the movant’s
20 claimed limitations did not hinder the ability of movant
21 Valdez, pro se, to file: (1) a motion seeking his case file
22 (Doc. 1310); (2) a motion for leave to appeal in forma
23 pauperis (Doc. 1319); and (3) a notice of appeal as to the
24 order denying his motion to obtain his case file (Doc. 1316).
25 These actions belie Valdez’s assertion that he “has no
26 understanding of the American federal justice system.”
27 (Doc. 10) at 6 (emphasis added).

Reply

These actions further

28 demonstrate that the movant’s limited English proficiency,

- 28 -

1 while perhaps a circumstance beyond his control, did not
2 prevent him from timely filing his Rule 60(b)(6) motion.
3

To recount, in 2005, insofar as the movant was aware, his

4 appeal had been pending without resolution since February
5 2001.

Also in 2005, the movant learned that his appellate

6 attorney was no longer entitled to practice law in California.
7 Nonetheless, movant Valdez did nothing to ascertain the status
8 of his appeal.

Another two and a half years or so passed

9 before the movant contacted the Ninth Circuit and was put on
10 notice that his appeal was dismissed for failure to file an
11 opening brief.

Even at that time, however, in early 2008, the

12 movant did not file a Rule 60(b)(6) motion.

Instead, he

13 waited roughly three more years before filing such a motion.
14 Courts have routinely held that delays of less than three
15 years in seeking Rule 60(b)(6) relief are not reasonable.
16 See, e.g.,

Morse–Starrett Products Co. v. Steccone, 205 F.2d

th
17 244, 249 (9 Cir. 1953) (22 months unreasonable); Foley v.

18 Rowland, 2012 WL 4027129, at *3 (E.D.Cal. Sept. 12, 2012) (16
19 month delay unreasonable), adopted, 2012 WL 4490881 (E.D.Cal.
20 Sept. 28, 2012); Hogan v. Robinson, 2009 WL 1085478, at *4
21 (E.D.Cal. April 22, 2009) (Rule 60(b)(6) motion “filed over 18
22 months after judgment was entered, and over two years after
23 Plaintiffs were put on notice of the facts and circumstances
24 upon which they rely[]” was untimely); Henry v. Lindsey, 2008
25 WL 4594948, at *2 (N.D.Cal. Oct. 15, 2008) (Rule 60(b)(6)
26 motion untimely where the petitioner waited “an additional two
27 and a half years” after the Ninth Circuit’s affirmance before
28 filing); Swait v. Evans, 2008 WL 4330291, at *5 - *6 (C.D.Cal.

- 29 -

1 Sept. 22, 2008) (Rule 60(b) motions untimely where petitioner
2 “failed to proffer any legally valid explanation for his two3 year delay” in filing).

Accordingly, this court has little

4 difficulty finding that movant Valdez did not file his Rule
5 60(b)(6) motion within a reasonable time.
6

This conclusion is all the more compelling considering,

7 as the court must, the interest in finality and prejudice to
8 the other parties.

Given that the movant’s habeas appeal was

9 dismissed on March 6, 2002, his case was closed and the
10 judgment final for almost nine years before he sought relief
11 under Rule 60(b)(6).

Under these circumstances, granting

12 movant Valdez’s motion would severely undermine the integrity
13 of the appellate process and prejudice the government.

See

14 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
15 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (Rehnquist, C.J.,
16 dissenting) (“This very strict interpretation of Rule 60(b) is
17 essential if the finality of judgments is to be preserved”).
18 For all of the reasons discussed herein, even if movant
19 Valdez’s motion could properly be construed as being brought
20 pursuant to Rule 60(b)(6), he did not bring it within a
21 “reasonable time” as Rule 60(c) mandates.
22
23

2.

“Extraordinary Circumstances

The Ninth Circuit “use[s] Rule 60(b)(6) sparingly as an

24 equitable remedy to prevent manifest injustice.”

Lal v.

th
25 California, 610 F.3d 518, 524 (9 Cir. 2010) (internal

26 quotation marks and citation omitted).

Therefore, “[i]n order

27 to bring himself within the limited area of Rule 60(b)(6) a
28 petitioner is required to establish the existence of

- 30 -

1 extraordinary circumstances which prevented or rendered him
2 unable to prosecute an appeal.”

Mackey, 682 F.3d at 1251

3 (emphasis added) (internal quotation marks and citation
4 omitted). “Such [extraordinary] circumstances will rarely
5 occur in the habeas context.”

a.

6
7

Gonzalez, 125 S.Ct. at 2649.

Maples

Through his “motion to supplement,” apparently movant

8 Valdez is attempting to establish extraordinary circumstances
9 based upon a claimed intervening change in the law, i.e.,
10 Maples, 132 S.Ct. 912, Martinez, 566 U.S. 1, and Mackey, 682
11 F.3d 1247.

Typically, when confronted with such an argument,

12 the court would apply the analytical framework adopted in
th
13 Phelps v. Alameida, 569 F.3d 1120 (9 Cir. 2009), requiring a

14 “case-by-case inquiry[,]” balancing a number of competing
15 factors.

Id. at 1133 (internal quotation marks and citation

th
16 omitted); see also Lopez v. Ryan, 678 F.3d 1131, 1135–37 (9

17 Cir.), cert. denied, —–- U.S. ----,
18 698 (2012).

133 S.Ct. 55, 183 L.Ed.2d

A Phelps analysis would be a futile exercise in

19 this case, however, at least with respect to the Supreme
20 Court’s decisions in Maples, 132 S.Ct. 912, and Martinez, 566
21 U.S. 1.

Even assuming arguendo that Maples is a change in law

22 as applied to movant Valdez, it is not an intervening change
23 in that Maples was decided while Valdez’s motion was pending
24 before the Magistrate Judge.

And, indeed, as earlier

25 discussed, the Magistrate Judge considered and rejected the
26 movant’s argument that Maples supports his Rule 60(b)(6)
27 motion –-- a conclusion with which this court agrees.
28 strictly from a temporal standpoint, Maples is not an

- 31 -

Thus,

1 intervening change in law, and cannot support a finding of
2 extraordinary circumstances in this case.

b.

3
4

Martinez

Martinez, 132 S.Ct. 1309, likewise does not constitute an

5 intervening change in law as it relates to movant Valdez.

In

6 Martinez, the Supreme Court carved out “a narrow exception[]”
7 –- an “equitable ruling[,]” 132 U.S. at 1319

–- to the

8 “unqualified statement in” Coleman v. Thompson, 501 U.S. 722,
9 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), “that an attorney’s
10 ignorance or inadvertence in a postconviction proceeding does
11 not qualify as cause to excuse a procedural default.”
12 Martinez, 132 S.Ct. at 1315.

The Martinez Court “held that a

13 procedural default will not bar a federal habeas court from
14 hearing a substantial claim of ineffective assistance at trial
15 if, in the [State’s] initial-review collateral proceeding,
16 there was no counsel or counsel in that proceeding was
17 ineffective.”

Trevino v. Thaler, 569 U.S. ----, 133 S.Ct.

11
18 1911, 1912, --- U.S. L.Ed.2d ---- (2013) (emphasis added).

19
20
21
22
23
24
25
26
27
28

11

To the extent movant Valdez’s post R & R motion can be read as
asserting that Martinez can form the basis for a application for a second
or successive section 2255, the Ninth Circuit’s decision in Buenrostro v.
United States, 697 F.3d 1137 (9th Cir. 2012), forecloses that argument. The
Buenrostro Court unambiguously held that “Martinez cannot form the basis
for an application for a second or successive motion because it did not
announce a new rule of constitutional law.” Id. at 1139. Likewise, the
Ninth Circuit held that “Martinez cannot form the basis for Buenrostro’s
application” to file a second or successive § 2255 motion because:
(1) “Martinez concern[ed] procedural default based on ineffective
assistance of habeas counsel in state habeas proceedings[;]” and
(2) “Buenrostro is a federal prisoner who wishes to collaterally attack
the legality of his federal conviction or sentence under 28 U.S.C.
§ 2255.” Id. at 1140. Consequently, the Ninth Circuit found Martinez to
be “inapplicable to federal convictions[.]” Id.
Buenrostro’s rationale applies with equal force here. Movant Valdez
is a federal prisoner who, like Buenrostro, “wishes to collaterally attack
the legality of his federal conviction or sentence under 28 U.S.C. § 2255.”
As Buenrostro makes clear, though, Martinez does not apply to
See id.

- 32 -

1

Because the present case does not “involve the initial

2 review of the state collateral proceeding[,]” the United
3 States contends that Martinez is “inapposite.”
4 16) at 4:24; and at 3:8.

Resp. (Doc.

Based upon unspecified “language” in

5 the Martinez “holding[,]” the movant responds that that
6 holding “applies to both state and federal prisoners[.]” See
7 Reply (Doc. 17) at 5.

The movant misapprehends the scope of

8 Martinez.
9

A close reading of Martinez confirms its limited

10 applicability and, in turn, the strength of the United States’
11 position herein.

Because “[t]he rule of Coleman governs in

12 all but the limited circumstances recognized” in Martinez, the
13 Supreme Court could not have been more clear; its “holding
14 . . . does not concern attorney errors in other kinds of
15 proceedings, including appeals from initial-review collateral
16 proceedings, second or successive collateral proceedings, and
17 petitions for discretionary review in a State’s appellate
18 courts.”

Martinez, 132 S.Ct. at 1320 (citations omitted).

19 Stressing its limited holding, the Supreme Court further
20 explained that Martinez “does not extend to attorney errors in
21 any proceeding beyond the first occasion the State allows a
22 prisoner to raise a claim of ineffective assistance at trial,
23 even though that initial-review collateral proceeding may be
24 deficient for other reasons.”
25 omitted).

Id. (emphasis added) (citations

Finally, the Court expressly limited its holding to

26 “only the constitutional claims presented in this case, where
27 the State barred the defendants from raising the claims on
28
federal convictions, such as the movant’s. Thus, Martinez cannot form the
basis for a second or successive section 2255 petition in this case.

- 33 -

1 direct appeal.”
2

Id. (emphasis added).

Pinnell v. Belleque, 2012 WL 6649229, at *2 (D.Or. Dec.

3 20, 2012), illustrates just how narrowly courts have construed
4 Martinez.

In Pinnell, the court rejected the petitioner’s

5 argument that “pursuant to Martinez [an] ineffective
6 assistance of post-conviction trial counsel [c]ould serve as
7 cause to excuse the default of his ineffective assistance of
8 direct appellate counsel claims.”
9 that

Id. at *2. Pointing out

Martinez “specifically limited the exception to claims

10 on ineffective assistance of trial counsel[,]” the Pinnell
11 court declined to extend Martinez to cover claims of
12 ineffective assistance of direct appellate counsel.
13

See id.

Movant Valdez’s situation is even more attenuated when

14 compared to Martinez.

Clearly, the present case is outside

15 the narrow scope of Martinez given that movant Valdez is a
16 federal prisoner, without any claims of procedural default and
17 cause and prejudice.

See Cross v. Benedetti, 2012 WL 3252863,

18 at * 3 (D. Nev. Aug. 7, 2012) (footnote omitted) (Martinez
19 inapplicable because neither petitioner’s “first nor . . .
20 second federal [habeas] petition constituted initial-review
21 state collateral proceedings.”).

Simply put, Martinez “did

22 not change the law in a manner germane to the judgment
23 rendered in this action.”

See Hamilton v. Swarthout, 2012

24 WL 4343830, at *3 (N.D.Cal. Sept. 21, 2012).

Consequently,

25 the court readily concludes that Martinez does not represent
26 an intervening change in law, and cannot form the basis for a
27 finding of extraordinary circumstances here.
28 . . .

- 34 -

c.

1
2

Mackey

The third decision upon which movant Valdez is relying to

3 show extraordinary circumstances is Mackey, wherein the Ninth
4 Circuit held “that a district court may grant an incarcerated
5 habeas petitioner relief from judgment pursuant to” Rule
6 60(b)(6) “if his attorney’s abandonment causes him to fail to
7 timely file a notice of appeal.”

Mackey, 682 F.2d at 1248

8 (emphasis added). Mackey, a state prisoner, represented by
9 counsel, filed a timely federal habeas petition, alleging IAC
10 by his trial counsel.

The court issued an order directing the

11 state to show cause why the writ of habeas corpus should not
12 be granted, which it did.

Mackey’s counsel, LeRue Grim, “did

13 not file a traverse by the March 2008 due date[,]” however.
14 Mackey, 682 F.3d at 1248.
15

In June, 2008 attorney Grim wrote Mackey, informing him

16 that his case was before the federal court in San Francisco,
17 that they were waiting for a trial date, and telling Mackey to
18 ask his parents to make a payment on his legal bill.
19 Attorney Grim did nothing further.

Id.

On July 13, 2009, the

20 district court denied Mackey’s habeas petition on the merits
21 and entered judgment against him.

Id.

Although he received

22 prompt notification of that entry of judgment, attorney Grim
23 did not notify Mackey and he did not file a notice of appeal.
24 Id. at 1249.
25

Eight months after the entry of judgment, Mackey wrote the

26 district court “stating that he was ‘unaware of the current
27 status’ of his case.”

Id.

After being advised of the entry

28 of judgment against him, Mackey again wrote to the

- 35 -

1 district court, “concern[ed] about his appellate rights[.]”
2 Id.

Mackey further advised the court that for months his

3 lawyer had been telling him that he had a court date.
4

Id.

At the direction of the court, attorney Grim responded

5 that Mackey’s parents had retained him for state post6 convictions proceedings, but they had only partially paid him.
7 Id.

Nonetheless, attorney Grim, pro bono, filed a section

8 2254 petition on Mackey’s behalf, while at the same time
9 “‘fully inform[ing]’” Mackey and his family that without
10 payment, he would not perform any other legal work regarding
11 that petition.
12

Id.

After Mackey accused Grim of continuously lying to him

13 about a hearing date, Grim informed the court that because
14 Mackey’s parents had stopped paying Grim, “apparently [they
15 have] abandoned their son’s legal defense.”

Id.

Although it

16 expressed “concern” about a perceived “failure of
17 communication” between Mackey and attorney Grim, the district
18 court denied Mackey’s Rule 60(b)(6) motion because it
19 determined that it did not “‘possess[] the discretion to
20 vacate and reenter the judgment in order to allow [Mackey] the
21 opportunity to appeal[.]’”
22

Id. at 1254. Mackey appealed.

The Ninth Circuit readily acknowledged that “‘[a] federal

23 habeas petitioner — who as such does not have a Sixth
24 Amendment right to counsel — is ordinarily bound by his
25 attorney’s negligence, because the attorney and the client
26 have an agency relationship under which the principal is bound
27 by the actions of the agent.’” Id. at 1253 (quoting Towery v.
th
28 Ryan, 673 F.3d 933, 941 (9 Cir.), cert. denied, ––– U.S.

- 36 -

1 ––––, 132 S.Ct. 1738, 182 L.Ed.2d 271 (2012)).

Simultaneously

2 though, the Ninth Circuit recognized that “when a federal
3 habeas petitioner has been inexcusably and grossly neglected
4 by his counsel in a manner amounting to attorney abandonment
5 in every meaningful sense that has jeopardized the
6 petitioner’s appellate rights, a district court may grant
7 relief pursuant to Rule 60(b)(6).”

Id. (citing, inter alia,

8 Maples, 132 S.Ct. at 924; Tani, 282 F.3d at 1170).

In light

9 of the foregoing, the Ninth Circuit found that if, as Mackey
10 contended, “he has demonstrated that extraordinary
11 circumstances — here, abandonment by counsel of record –
12 prevented him from being notified of the order denying his
13 federal habeas petition[,] . . . justice requires that relief
14 be granted so that he may pursue an appeal.”
15 (citation omitted).

Id. at 1253

Reversing and remanding, the Ninth

16 Circuit instructed the district court to make a finding as to
17 abandonment and, if so, whether to exercise its discretion to
18 grant Mackey Rule 60(b)(6) relief from judgment.

Id. at

19 1254.
20

Upon remand, the district court held that Mackey had been

21 abandoned by his lawyer and thus was entitled to Rule 60(b)(6)
22 relief.

Mackey v. Hoffman, 2012 WL 4753512, at *1 (N.D.Cal.

23 Oct. 4, 2012). Focusing on the lack of communication between
24 Mackey and his attorney, the district court faulted Grim for
25 “not keep [Mackey] apprised of the status of []his case[.]”
26 Id.

“[M]ost importantly,” the district court found that Grim

27 had “failed to inform [Mackey] that [his] [habeas] petition
28 had been denied and that judgment had been entered.”
- 37 -

Id.

The

1 court further found that Mackey “did not learn of the denial
2 until the time for appeal had lapsed, and this abandonment by
3 his counsel was an ‘extraordinary circumstance beyond his
4 control.’” Id. (quoting Maples, 132 S.Ct. at 924).

The court

5 also pointed out that Grim did not abide by the district
6 court’s rule “requiring him to seek permission to withdraw as
7 attorney of record[.]”

Id. at 1253 (citation omitted).

8 Therefore, the court granted Mackey’s Rule 60(b)(6) motion and
9 vacated its prior judgment denying such relief.
10

Without offering any explanation, in his motion to

11 supplement the movant simply contends that Mackey “direct[ly]
12 imp[]act[s] . . . the issues presented” herein.
13 14) at 1.

Mot. (Doc.

The United States is of the view, however, that

14 “Mackey applies the holding in Maples but does not expand it
15 in any way meaningful to the [movant’s] case.” Resp. (Doc. 16)
16 at 3:6-7. Distinguishing Mackey on the basis that it “dealt
17 with . . . failure to file a notice of appeal and not[,]” as
18 here, “the effective prosecution of that appeal once it
19 commenced,[,]” the United States argues that Mackey does not
20 alter the R & R’s analysis.
21

Id. at 4:15-17.

Charging the United States with reading Mackey “too

22 narrow[ly][,]” in rejoinder, the movant claims that, much like
23 Mackey, his attorney abandoned him when he did not file the
24 opening brief, resulting in the dismissal of his appeal.
25 Reply (Doc. 17) at 1.

Based upon that alleged attorney

26 abandonment, the movant asserts that he is entitled to
27 “vacature and reentry of the judgment denying his initial
28 § 2255 motion and granting a [COA] on the issue of ineffective
- 38 -

1 assistance of trial counsel, so that [he] can prosecute the
2 appeal he was denied due to abandonment by his [appellate]
3 attorney[.]”
4

Id. at 5.

“[A] change in the law will not always provide the truly

5 extraordinary circumstances necessary to reopen a case.”
6 Phelps, 569 F.3d at 1133 (internal quotation marks and
7 citation omitted).

Indeed, the Supreme Court has noted that

8 “[i]ntervening developments in the law by themselves rarely
9 constitute the extraordinary circumstances required for relief
10 under Rule 60(b)(6)[.]” Agostini v. Felton, 521 U.S. 203, 239,
11 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

As the Ninth Circuit

12 instructed in Phelps, “[t]he proper course when analyzing a
13 Rule 60(b)(6) motion predicated on an intervening change in
14 the law is to evaluate the circumstances surrounding the
15 specific motion before the court.”

Id. at 1133.

16 analysis involves “a case-by-case inquiry .
17 numerous factors[.]” Id.

That

. . . balanc[ing]

Those factors include but are not

18 limited to: (1) “the nature of the intervening change in
19 law[;]” (2) “the petitioner’s exercise of diligence in
20 pursuing the issue during the federal habeas proceedings[;]”
21 (3) “the interest in finality[;]” (4) the “delay between the
22 finality of the judgment and the motion for Rule 60(b)(6)
23 relief[;]” (5) the “degree of connection” between the original
24 and intervening decisions at issue in the Rule 60(b)(6)
25 motion; and (6) “comity.”

Lopez, 678 F.3d at 1135-1137

26 (internal quotation marks and citations omitted).

The

27 enumerated factors above are not meant to “impose a rigid or
28 exhaustive checklist[]” in the exercise of this court’s
- 39 -

1 discretion.

Phelps, 569 F.3d at 1135.

Guided by the six

2 Phelps factors, this court will consider whether Mackey
3 constitutes an extraordinary circumstance for purposes of Rule
4 60(b)(6) so as to justify vacating movant Valdez’s judgment of
5 dismissal of his habeas petition entered over a decade ago.

i.

6
7

Nature of Change

The first Phelps factor “focuses on the extent to which

8

the law was settled prior to the intervening change[.]”

9

Phelps, 569 F.3d at 1139.

Gonzalez, 545 U.S. 524,

10

illustrates a situation where a change in law did not

11

constitute extraordinary circumstances.

12

in Gonzalez had dismissed the petitioner’s first federal

13

habeas petition as untimely based upon the AEDPA’s statute of

14

limitations.

15

sought to reopen that judgment, arguing that a subsequent

16

Supreme Court decision had changed the interpretation of the

17

AEDPA’s statute of limitations, so as to render timely his

18

previously time-barred claims.

19

that change in law constituted an extraordinary circumstance

20

warranting relief under that Rule.

21

The district court

Pursuant to Rule 60(b)(6), the petitioner

The petitioner argued that

Disagreeing, the Supreme Court reasoned that “[t]he

22

District Court’s interpretation was by all appearances

23

correct under the Eleventh Circuit’s then-prevailing

24

interpretation” of the AEDPA’s statute of limitations.

25

at 536 (emphasis added).

26

pointed out that it was “hardly extraordinary that . . .

27

after petitioner’s case was no longer pending,” and in

28

resolving a Circuit split, it “arrived at a different

Continuing, the Supreme Court

- 40 -

Id.

1

interpretation.”

Id.

2

Contrasting Gonzalez, where the change in law “upset or

3

overturn[ed] a settled legal principle[,]” the Ninth Circuit

4

in Phelps, held that an intervening change of law favored

5

granting Rule 60(b)(6) relief where the disputed issue “was

6

decidedly un settled” when Phelps’ petition was before the

7

district court.”

8

original).

9

a panel of [the Ninth Circuit], the exact same issue was

10

pending before two other Ninth Circuit panels considering

11

other appeals.”

12

diametrically opposite outcomes from that reached by the

13

panel reviewing Phelps’ case.”

14

precedent in Phelps “resolved a conflict between multiple

15

Ninth Circuit panels that had issued contemporaneous but

16

contradictory memorandum dispositions.”

17

also Anderson v. Kane, 2009 WL 3059122, at *1 (D.Ariz. Sept.

18

22, 2009) (comparing cases) (weighing in favor of Rule

19

60(b)(6) relief because the issue was “not settled in the

20

Ninth Circuit” prior to the intervening change in law).

21

law regarding the core disputed issue in the Phelps’ case did

22

not become settled until fifteen months after his appeal

23

became final[.]” Id. at 1136.

24

became apparent that the interpretation was the one Phelps

25

“had pressed all along.”

26

Ninth Circuit found that the first factor “necessarily cuts

27

in favor of granting” Rule 60(b)(6) relief.

28

Phelps, 569 F.3d at 1136 (emphasis in

When “Phelps’ original appeal was pending before

Id.

And, “those panels reached

Id.

Id.

In fact, the intervening

Id. at 1139.

see

“The

What is more, at that point it

Under these circumstances, the

Id.

The Ninth Circuit in Lopez, 678 F.3d 1131, was confronted
- 41 -

1

with a change in intervening law which “differ[ed] from the

2

situations at issue in Gonzalez and Phelps.”

3

That is because unlike Phelps, prior to Lopez bringing his

4

Rule 60(b)(6) motion, “it was settled law that post-

5

conviction counsel’s effectiveness was irrelevant to

6

establishing cause for procedural default.”

7

omitted).

8

Court “‘recogniz[ed] a narrow exception’” to that settled

9

law.

Id. at 1136.

Id. (citation

However, in Martinez, 132 S.Ct. 1309, the Supreme

Id. (quoting Martinez, 132 S.Ct. at 1315).

Finding

10

“the Supreme Court’s development in Martinez” to be a

11

“remarkable — if ‘limited,’ – development in the Court’s

12

equitable jurisprudence[,]” the Ninth Circuit in Lopez held

13

that the nature of the change in intervening law

14

“weigh[ed] slightly in favor of reopening Lopez’s habeas

15

case” pursuant to Rule 60(b)(6).

16

(internal citation omitted)(emphasis added).12

17

Lopez, 678 F.3d at 1136

The nature of the intervening change of law here -–

18

Mackey, 682 F.3d 1247 –- does not fit squarely within the

19

contours of

20

consideration, though, the court finds that the nature of the

21

change of law in Mackey weighs against granting Rule 60(b)(6)

22

relief.

23

principle as to now permit the petitioner to raise a credible

24

claim that he could not have previously raised.”

Gonzalez, Phelps, or Lopez.

After careful

Mackey did not “upset or overturn[] a settled legal

See Gates,

25
26
27
28

12

But see Tilcock v. Budge, 2013 WL 2324452, at *2 (D.Nev. May 28,
2013) (cataloging cases) (“[V]irtually every court to have examined the
import of Martinez in the context of a request for Rule 60(b)(6) relief has
rejected the notion that Martinez satisfies Rule 60(b)(6)’s ‘extraordinary
circumstances’ requirement.”)

- 42 -

1

2011 WL 6369731, at *2 (emphasis added).

Indeed, even prior

2

to Mackey, the Ninth Circuit, albeit not in the habeas

3

context, had allowed Rule 60(b)(6) relief from judgment

4

where, as movant Valdez is alleging, attorneys engaged in

5

gross negligence, virtually abandoning their clients.

6

In Cmty. Dental Servs. v. Tani, 282 F.3d 1164 (9th Cir.

7

2002), the Ninth Circuit held that a default judgment could

8

be set aside pursuant to Rule 60(b)(6) where the defense

9

attorney “‘virtually abandoned his client by failing to

10

proceed with his client’s defense despite court orders to do

11

so’ and deliberately deceived his client about what he was

12

doing (or not doing).”

13

(9th Cir. 2010) (quoting Tani, 282 F.3d at 1171-1172).

14

Tani Court reasoned:

15
16
17
18
19

Lal v. California, 610 F.3d 518, 524
The

[C]onduct on the part of a client’s
alleged representative that results
in the client’s receiving practically
no representation at all clearly constitutes
gross negligence, and vitiat[es] the
agency relationship that underlies our
general policy of attributing to the
client the acts of his attorney.

20
21

Tani, 282 F.3d at 1171.

22

Extending Tani, the Ninth Circuit in Lal, 610 F.3d 518,

23

granted Rule 60(b)(6) relief from a Rule 41(b) dismissal for

24

failure to prosecute where the attorney’s conduct was

25

strikingly similar to the attorney’s conduct in Tani.

26

were grossly negligent in virtually abandoning their clients’

27

cases and deliberately misleading them.

28

Madison v. First Mangus Financial Corp., 2009 WL 1148453, at
- 43 -

Both

Id. at 525; see also

1

*4 (D.Ariz. Apr. 28, 2009) (internal quotation marks and

2

citation omitted) (granting Rule 60(b)(6) relief from

3

dismissal of case for failure to file a second amended

4

complaint, where attorney’s conduct met the Tani gross

5

negligence standard in that he virtually abandoned his client

6

by failing to proceed with her case

7

“intensified by his failure to apprise Plaintiff of the

8

developments in her case and by his representations that he

9

would perform his responsibilities as her counsel”).

10

– a deficiency

Moreover, assuming for the sake of argument that Mackey

11

did announce a new rule of law in this Circuit, “it did not

12

change the law in a manner germane to the judgment rendered”

13

herein. See Hamilton v. Swarthout, 2012 WL 4343830, at *3

14

(N.D.Cal. Sept. 21, 2012).

15

Valdez filed his Rule 60(b)(6) motion in February 2011,

16

“there was no Supreme Court or Ninth Circuit precedent

17

barring him from” arguing that attorney Kooyumjian’s failure

18

to file the opening appellate brief constituted gross

19

negligence and amounted to virtual abandonment.

20

(Ninth Circuit decision “announce[ing] a new rule of law” as

21

to actual innocence “did not change the law in a manner

22

germane to the” petitioner because when he originally filed

23

his habeas petition, “there was no Supreme Court or Ninth

24

Circuit precedent barring him from asserting such a claim”);

25

see also Gates, 2011 WL 6369731, at *3 (citations omitted)

26

(same).

27

issue of law and because Ninth Circuit and Supreme Court

28

precedent did not foreclose the movant’s abandonment

That is because when movant

See id.

In short, because Mackey did resolve an unsettled

- 44 -

1

argument, the nature of the change in law due to Mackey

2

weighs against a finding of extraordinary circumstances so as

3

to justify Rule 60(b)(6) relief.

4
5

ii.

Diligence

The second Phelps factor “considers the petitioner’s

6

exercise of diligence in pursuing the issue during the

7

federal habeas proceedings.”

8

(citation omitted).

9

movant Valdez’s habeas petition because, as detailed herein,

10

he was not diligent in pursuing the issue of alleged attorney

11

abandonment during the course of this federal habeas

12

proceeding.

13

ascertain the status of his appeal, even though it had been

14

pending for roughly four years and he had learned that his

15

attorney was no longer entitled to practice law in

16

California.

17

movant finally contacted the Ninth Circuit regarding the

18

status of his appeal.

19

that his appeal had been dismissed for failure to file the

20

opening brief, plaintiff waited another three years before

21

filing this Rule 60(b)(6) motion.

22

the court cannot find that the movant was diligent in

23

pursuing his claim of attorney abandonment.

24

to Gonzalez,

25

Mackey is “all the less extraordinary” due to the movant’s

26

lack of diligence.

27

2641.

28

. . .

Lopez, 678 F.3d at 1136

This factor cuts against reopening

To reiterate, in 2005 the movant did nothing to

After waiting another two and a half years, the

And, although he learned in early 2008

Under these circumstances,

Indeed, similar

the purported change in the law wrought by

See Gonzalez, 545 U.S. at 537, 125 S.Ct.

- 45 -

iii.

1

Finality

2

The third Phelps factor is whether granting relief from

3

judgment under Rule 60(b)(6) “would ‘undo the past, executed

4

effects of the judgment,’ thereby disturbing the parties’

5

reliance interest in the finality of the case.”

6

F.3d at 1137 (quoting Ritter v. Smith, 811 F.2d 1398, 1402

7

(11th Cir. 1987)).

8

when the final judgment being challenged has caused one or

9

more of the parties to change his legal position in reliance

Phelps, 569

“Rule 60(b)(6) relief is less warranted

on that judgment.”

11

changed its legal position in reliance upon the district

12

court’s dismissal of Phelps’ time-barred habeas petition, the

13

Ninth Circuit found this factor “weigh[ed] heavily in [his]

14

favor.”

15

Id.

In Phelps, because neither party

10

Id. at 1138.

The same could be said here.

Therefore, on the face of

16

it Phelps appears to be analogous to the present case.

17

the movant’s petition was dismissed on appeal, as in Phelps

18

“his federal case simply ended: [movant Valdez] remain[s] in

19

prison, and the [United States] [has] stopped defending his

20

imprisonment.”

21

there are “no ‘past effects’ of the judgment that would be

22

disturbed if the case were reopened for consideration on the

23

merits of [Valdez’s] habeas petition because the parties

24

would simply pick up where they left off.”

25

When

See id. at 1138. As a result, as in Phelps,

But that is only one side of the coin.

See id.
There are two

26

critical distinctions between Phelps and the present case

27

which compel a finding that “the strong public interest in

28

[the] timeliness and finality of judgments” would not be
- 46 -

1

served by granting movant Valdez’s Rule 60(b)(6) motion based

2

upon Mackey.

3

quotation marks and citation omitted).

4

distinction is that Phelps “demonstrated more diligence than

5

[the Ninth Circuit] could ever reasonably demand from a

6

habeas petitioner.” Id. at 1136.

7

could not “imagine a more sterling example of diligence than

8

Phelps has exhibited.”

9

every step of the way, Phelps pursued all avenues of relief,

See Phelps, 569 F.3d at 1135 (internal
The first critical

Indeed, the Ninth Circuit

Id. at 1137.

For over a decade, at

10

“put[ting] forth cogent, compelling, and correct legal

11

arguments[.]” Id.

12

movant Valdez was the opposite of diligent.

13

In contrast, as previously discussed,

The second equally compelling difference between Phelps

14

and the present case is that “entirely as a result of

15

misfortune[,]” despite over eleven years of litigation,

16

Phelps sat in prison “without a single federal judge ever

17

having evaluated the substance of his petition for habeas

18

corpus[.]” Id. at 1123.

19

same misfortune; his habeas petition was decided on the

20

merits.

21

considered the movant’s habeas petition, ordering

22

supplemental briefing and conducting an evidentiary hearing,

23

during which the movant offered the testimony of two

24

witnesses.

25

the Magistrate Judge recommended denying Valdez’s section

26

2255 motion.

27

despite being given ample opportunity to do so (three

28

months).

Movant Valdez did not suffer that

A United States Magistrate Judge thoroughly

CR Doc. 1206 at 1.

After a thorough analysis,

Movant Valdez did not file any objections,

CR Doc. 1210 at 4:7.

Reviewing and accepting that

- 47 -

1

report, this court denied Valdez’s section 2255 motion.

2

Based upon the foregoing, the court finds that the interest

3

in the finality of judgment also weighs against an

4

extraordinary circumstance finding.

5
6

iv.

Delay

“The fourth factor concerns delay between the finality

7

of the judgment and the motion for Rule 60(b)(6) relief.”

8

Lopez, 678 F.3d at 1136 (internal quotation marks and

9

citation omitted).

This factor embodies the principles that

10

“individuals seeking to have a new legal rule applied to

11

their otherwise final case should petition the court for

12

reconsideration with a degree of promptness that respects the

13

strong public interest in timeliness and finality.’” Phelps,

14

569 F.3d at 1138.

15

Here, just three weeks after the issuance of Mackey, 682

16

F.3d 1247, movant Valdez filed his motion to supplement based

17

thereon.

18

in bringing his original Rule 60(b)(6) motion, the same

19

cannot be said of his motion to supplement.

20

factor augurs slightly in favor of movant Valdez.

21

678 F.3d at 1136 (petitioner moved with the requisite degree

22

of promptness, weighing in favor of reopening his habeas case

23

by filing his Rule 60(b)(6) motion within three weeks after

24

the issuance of Martinez, 132 S.Ct. 1309).

25
26

Thus, although movant Valdez significantly delayed

v.

Therefore, this
See Lopez,

Degree of Connection

“The fifth consideration pertains to the degree of

27

connection between” movant Valdez’s case and Mackey, and

28

overlaps somewhat with the nature of the change discussed
- 48 -

1

earlier.

See Lopez, 678 F.3d at 1137 (citation omitted).

2

The degree of connection “factor is designed to recognize

3

that the law is regularly evolving.”

4

1139.

5

system, “legal rules and principles inevitably shift and

6

evolve over time, but the mere fact that they do so cannot

7

upset all final judgments that have predated any specific

8

change in law.” Id.

9

underscored, “the nature of that change is important.”

Phelps, 569 F.3d at

Given the common law heritage of the American judicial

That is why, as the Court in Phelps
Id.

10

(emphasis in original).

Thus, courts are “to examine closely

11

the original and intervening decisions at issue in a

12

particular motion for reconsideration predicated on an

13

intervening change in the law: if there is a close connection

14

between the two cases, the court [will be more likely to]

15

f[i]nd the circumstances sufficiently extraordinary to

16

justify disturbing the finality of the [original] judgment.”

17

Id. (internal quotation marks and citation omitted).

18

Closely examining Mackey and movant Valdez’s current

19

theory of abandonment persuades the court that because of the

20

tenuous connection between the two, Mackey does not

21

constitute an extraordinary circumstance for Rule 60(b)(6)

22

purposes.

23

distinguishable from Phelps, 569 F.3d 1120, where the Court

24

found the requisite close connection.

25

Ninth Circuit relied upon the same two factors as it did in

26

finding that the nature of the change in law cut in favor of

27

a finding of extraordinary circumstances.

28

Court in Phelps relied upon the fact that “the intervening

In the first place, this case is readily

- 49 -

In so finding, the

To repeat, the

1

change in the law directly overruled the decision for which

2

reconsideration [had been] sought[;]” and “the intervening

3

precedent resolved a conflict between competing and co-equal

4

legal authorities.”

5

omitted).

6

in conjunction with the nature of the change in law in

7

Mackey.

8

no “direct relationship” between the movant’s abandonment

9

theory herein and Mackey.

10

Phelps, 569 F.3d at 1339 (citation

Neither of those factors exists here, as discussed

It necessarily follows that unlike Phelps, there is

See Phelps, 569 F.3d at 1339.

The necessary degree of close connection is lacking for a

11

second, more fundamental reason.

12

between Mackey and movant Valdez’s current theory is missing

13

because Mackey is distinguishable and hence inapplicable

14

here.

15

provide the sort of identity with Martinez favoring Rule

16

60(b)(6) relief because a merits review of his claim was not

17

precluded by procedural default, as in Martinez, but by his

18

failure to develop the factual basis of his claim under 28

19

U.S.C. § 2254(e)(2)); see also Tilcock, 2013 WL 2324452, at

20

* 2 (D.Nev. May 28, 2013) (internal quotation marks omitted)

21

(“the degree of connection between the extraordinary

22

circumstance and the decision for which reconsideration is

23

sought [was] completely lacking”

24

claim that perjured testimony was used to convict him . . .

25

d[id] not fall within the Martinez exception[]”). Of the many

26

distinctions between Mackey and the present case, perhaps the

27

most significant is timing.

28

contacted the district court to inquire about the status of

See

The requisite identity

Lopez, 678 F.3d at 1137 (Lopez’s claim did not

because “[p]etitioner’s

Petitioner Mackey first

- 50 -

1

his case a mere eight months after the entry of judgment

2

against him.

3

contacted the district court a second time, after being

4

advised of the entry of judgment against him, because he was

5

“concern[ed] about his appellate rights[.]” Id.

6

prompt inquiry and follow-up, the Ninth Circuit had no

7

occasion to consider, as this court has, the impact of a

8

significant delay upon a Rule 60(b)(6) motion based upon a

9

purported change in law.

Mackey, 682 F.3d at 1249.

Additionally, he

Given that

10

There is also a significant distinction between the

11

circumstances which gave rise to a finding of abandonment in

12

Mackey and the present case.

13

fail to keep him apprised of the status of his case,

14

resulting in the petitioner missing the deadline for filing

15

an appeal, but he “misled” Mackey and freely admitted doing

16

“nothing more on the case” after filing an amended § 2254

17

petition.

18

attorney himself informed the district court that Mackey had

19

“been deprived of counsel in this habeas corpus proceeding

20

through no fault of his own[,]” and that “[f]airness

21

suggests” vacating the order dismissing Mackey’s habeas

22

petition; reinstating that proceeding and appointing counsel

23

to represent Mackey.

24

Not only did Mackey’s attorney

Mackey, 682 F.3d at 1249.

Moreover, Mackey’s

Id. at 1250.

There are no such compelling circumstances in the present

25

case.

The sole basis for movant Valdez’s abandonment theory

26

is that his attorney did not file an opening brief, resulting

27

in dismissal of his habeas petition by the Ninth Circuit.

28

This is not a situation, as in Mackey, where Valdez’s
- 51 -

1

attorney filed the notice of appeal and then did nothing.

2

Slightly more than a month after filing the notice of appeal,

3

Mr. Kooyumjian successfully moved the Ninth Circuit for

4

modification of the briefing schedule.

5

#

6

was also successful in obtaining two further extensions of

7

time in which to file the opening brief.

8

also

9

attorney Kooyumjian did file an opening brief, but it was

10

U.S. v. Soto-Valdez,

01-15427 (9th Cir.) at 5 (April 12, 2001).

Mot., exh. E thereto (Doc. 1) at 16.

“deficient no excerpts[.]”

11

Mr. Kooyumjian

Id. at 7 and 8; see
And eventually,

Id. at 12 (Nov. 7, 2001).

Furthermore, there are no allegations, much less proof,

12

as there was in Mackey, that Mr. Kooyumjian “‘continuously

13

. . . lied’” or

14

at 1249; 1253.

15

Towery, 673 F.3d 933, where the Ninth Circuit found

16

“unpersuasive” a capital prisoner’s claim of abandonment

17

based upon his attorney’s omission of “a colorable

18

constitutional claim from his . . . amended petition.”

19

at 942.

20

abandonment, the Towery Court pointed out that that the

21

petitioner made “no claim [that his attorney] performed

22

incompetent legal work, failed to communicate with him,

23

refused to implement his reasonable requests or failed to

24

keep him informed of key developments in his case.”

25

944.

“misled” movant Valdez. See Mackey, 682 F.3d
Rather the situation here is more akin to

Id.

In upholding the district court’s finding of no

Id. at

26

Movant Valdez’s claim of attorney abandonment is

27

similarly lacking, although implicit in his petition is a

28

claim that Mr. Kooyumjian did not inform him that his appeal
- 52 -

1

had been dismissed for failure to file an opening brief.

2

Nevertheless, on this limited record, the court cannot find

3

that Kooyumjian’s singular failure of filing a deficient

4

appellate brief resulted in “inexcusabl[e] and gross

5

neglect[] . . . amounting to attorney abandonment[.]” See

6

Mackey, 682 F.3d at 1253 (internal quotation marks and

7

citations omitted).

8
9

In addition, the scant proof before this court undermines
movant Valdez’s claim that Mr. Kooyumjian abandoned him by

10

not filing an opening brief.

At least as of March 2005, well

11

after the dismissal of his appeal, the movant still had an

12

attorney-client relationship with Mr. Kooyumjian, as can be

13

seen from the former’s letter to the State Bar of California.

14

In response to the movant’s March 2005 inquiry regarding Mr.

15

Kooyumjian, the State Bar closed the matter because the

16

movant “indicated that Mr. Kooyumjian [wa]s still

17

representing” him.

18

(emphasis added).

19

pursue disciplinary investigations when an ongoing attorney-

20

client relationship exists between the complainant and the

21

attorney against whom the complaint has been filed.”

22

(emphasis added).

23

movant Valdez has not shown severance of the attorney-client

24

relationship

25

necessarily then, not earlier, in 2001, when Mr. Kooyumjian

26

filed a deficient appellate brief.

Mot., exh. G thereto (Doc. 1) at 18
It explained that the State Bar “does not

Id.

Under these circumstances, obviously,

– at least not as of March 2005, and

27

While the court certainly does not condone Mr.

28

Kooyumjian’s conduct, it cannot find that his actions or
- 53 -

1

inactions were sufficiently egregious to constitute

2

abandonment, as occurred in Mackey.

3

at most, Mr. Kooyumjian’s singular omission of filing a

4

deficient brief “suggest[s] simple negligence[]” -– not

5

abandonment.

6

failure to timely file petitioner’s petition and ignorance of

7

the limitations period “suggest[ed] simple negligence[]”).

8

What is more, “a federal habeas petitioner[,]” such as movant

9

Valdez, “who as such does not have a Sixth Amendment right to

On this limited record,

See Holland, 130 S.Ct. at 2564 (counsel’s

10

counsel . . . is ordinarily bound by the attorney’s

11

negligence, because the attorney and the client have an

12

agency relationship under which the principal is bound by the

13

actions of the agent.”.

14

(internal quotation marks and citation omitted).

15

this record convinces the court, even in light of Mackey, to

16

depart from that rule here.

17

between Mackey and the present case, the necessary degree of

18

connection between the two is missing.

19

factor also militates against a finding that Mackey is an

20

extraordinary circumstance entitling movant Valdez to Rule

21

60(b)(6) relief.

22
23

vi.

See Mackey, 682 F.3d at 1253
Nothing on

Thus, due to the differences

Consequently, this

Comity

The final Phelps factor, “the need for comity between the

24

independently sovereign state and federal judiciaries[,]” 569

25

F.3d at 1139, does not come into play here because movant

26

Valdez is a federal prisoner.

27
28

After “intensively balanc[ing]” the Phelps factors, the
court finds that movant Valdez has not established that
- 54 -

1

Mackey constitutes an “extraordinary circumstance” justifying

2

Rule 60(b)(6) relief from judgment.

3

1133.

4

the nature of the change in law, the movant’s lack of

5

diligence, the strong interest in finality of judgments, and

6

the lack of a close connection between Mackey and the

7

movant’s abandonment theory.

8

between the time Mackey was decided and the movant’s bringing

9

that decision to this court’s attention – slightly favors an

See Phelps, 569 F.3d at

Four of those factors weigh against such a finding

One factor

10

extraordinary circumstance finding.

11

–

– the short delay

factor, is neutral.

12

Comity, the last Phelps

The court’s conclusion is not merely the result of a

13

mechanical application of the Phelps factors though.

At all

14

times it has been highly cognizant that, at bottom, “Rule

15

60(b)(6) is a grand reservoir of equitable power.”

16

Phelps, 569 F.3d at 1133; and 1135 (internal quotation marks

17

and citation omitted). In the present case, as the Phelps

18

analysis has shown, the equities weigh against reopening a

19

more than decade old judgment.

20

the competing policies of the finality of judgments and the

21

incessant command of the court’s conscience that justice be

22

done in light of all the facts[,]” compel a finding that

23

Mackey, 682 F.3d 1247, is not an intervening change in law

24

tantamount to an extraordinary circumstance so as to allow

25

relief from judgment in this case.

26

quotation marks and citation omitted).

27

the court is not at liberty to “use [the] provisions of Rule

28

60(b) to circumvent the strong public interest in [the]

See

And, these factors “including

- 55 -

See id. at 1133 (internal
Thus, on this record,

1

timeliness and finality of judgments.”

2

Id. at 1135 (internal

quotation marks and citation omitted).
To summarize, albeit for different reasons, movant Valdez

3
4

cannot rely upon Maples, 132 S.Ct. 912, Martinez, 132 S.Ct.

5

1309, or Mackey, 682 F.3d 1247, to establish extraordinary

6

circumstances justifying relief from judgment pursuant to

7

Rule 60(b)(6).

8

III.

All Writs Act
As an afterthought, in a footnote in his objections to

9
10

the Magistrate Judge’s R & R, movant Valdez asserts that this

11

court has the authority under the All Writs Act, 28 U.S.C.

12

§ 1651, “to provide a remedy for the relief requested.”

13

Obj. (Doc. 13) at 6.

14

whatsoever for the granting of such extraordinary relief.

15

Therefore, this aspect of the movant’s petition fails as

16

well.

17

IV.

18

Movant Valdez offers no basis

Motion for Disposition
The court’s rulings herein render moot petitioner’s

19

“Motion for Disposition on Pending Motion under Rule

20

60(b)(6)” (Doc. 18). Accordingly, the court hereby DENIES

21

such motion.

22
23

Conclusion
To conclude, after conducting this de novo review, the

24

court finds no merit to any of movant Valdez’s objections to

25

the Magistrate Judge’s Report and Recommendation (Doc. 12).

26

The court further finds that movant Valdez’s Rule 60(b)(6)

27

motion is an impermissible second or successive habeas

28

petition, over which this court lacks jurisdiction.
- 56 -

Even if

1

there were jurisdiction to entertain Valdez’s Rule 60(b)(6)

2

motion, this court would, nonetheless, deny it because such

3

motion was neither brought within a reasonable time; nor is

4

it predicated upon a showing of extraordinary circumstances.

5

Accordingly, the court hereby ORDERS that:

6
7
8
9
10

(1) United States Magistrate Judge Anderson’s Report and
Recommendation (Doc. 12) is ADOPTED; and accordingly,
(2)

Petitioner Castulo Soto-Valdez’s “Motion for Relief

from Judgment Under Rule 60(b)(6) (Doc. 1) is DENIED;
(3)

Petitioner Castulo Soto-Valdez’s “Motion to

11

Supplement Pending Rule 60(b) Motion with New Decision by the

12

United States Supreme Court that Would Support Petitioner’s

13

Rule 60(b) Motion” (Doc. 11) is GRANTED to the extent that

14

the Court considered petitioner’s arguments therein; and

15

IT IS FURTHER ORDERED that:

16

(4) Petitioner Castulo Soto-Valdez’s “Motion to

17

Supplement Pending Motion Under Rule 60(b)(6) with Recent

18

Circuit Law” (Doc. 14) is GRANTED to the extent that the

19

Court considered petitioner’s arguments therein; and

20

(5) Petitioner Castulo Soto-Vadlez’s “Motion for

21

Disposition on Pending Motion Under Rule 60(b)(6) (Doc. 18)

22

is DENIED as moot.

23

DATED this 18th day of September, 2013.

24
25
26
27
28

Copies to counsel of record and defendant/movant pro se
- 57 -