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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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 United States of America, Plaintiff/Respondent, vs. Castulo Soto-Valdez, Defendant/Movant. ) ) ) ) ) ) ) ) ) ) No. CV-99-1591-PHX-RCB(LOA) O R D E R 17 18 Introduction 19 Currently pending before the court is the Report and 20 Recommendation (“R & R”) of the Honorable United States 21 Magistrate Judge Lawrence O. Anderson (“the Magistrate 22 Judge”), wherein he recommends: (1) denying movant’s Motion 23 for Relief from Judgment under Rule 60(b)(6) (Doc. 1); 24 granting movant’s Motion to Supplement his Rule 60(b)(6) 25 (Doc. 11); and denying a Certification of Appealability 26 (“COA”) and leave to proceed in forma pauperis on appeal. 27 R & R (Doc. 12) at 7:16-24. 28 Movant pro se, Castulo Soto- 1 Valdez (“Valdez”1), timely objected to the R & R. Also pending 2 before the court is the movant’s second motion to supplement 3 (Doc. 14), based upon, inter alia, two cases decided after 4 the issuance of the R & R. 5 movant’s “Motion for Disposition” (Doc. 18). 6 The final pending matter is the There being no objections to the R & R’s factual 7 recitation, the court adopts that background as if fully set 8 forth herein. 9 convenience though, the court reiterates those facts bearing See R & R (Doc. 12) at 1:18-3:22. For 10 most heavily on the pending R & R. 11 plaintiff’s motion to supplement, filed after the issuance of 12 the R & R, also are set forth below. The facts relevant to 13 Movant Valdez is serving a 360 month sentence for a 14 conviction for conspiring to distribute and possess with 15 intent to distribute methamphetamine. 16 his then attorney, Colin Jon Kooyumjian, appealed that 17 conviction. 18 the Ninth Circuit specifically, “decline[d] to consider 19 [Valdez’s] ineffective assistance of counsel [(“IAC”)] 20 claim,” on the basis that it “should be resolved in a 21 separate habeas corpus proceeding.” 22 Valdez, 191 F.3d 462, 1999 WL 701896, at *1 (9th Cir. 1999) 23 (unpublished). Although it affirmed the movant’s conviction, 24 25 26 The movant, through United States v. Soto- Background I. Habeas Corpus Motion Presciently, just a few days prior to the issuance of 27 28 1 When referring to him by name, as does the movant, the court will refer to Mr. Soto-Valdez as Valdez. -2- 1 that decision, on September 3, 1999, attorney Kooyumjian, 2 filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside, 3 or Correct sentence, asserting an IAC claim and prosecutorial 4 misconduct. 5 The IAC claim was predicated upon trial counsel’s alleged 6 failure to listen to and obtain a voice analysis of wiretaps 7 purporting to be conversations between him and other 8 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 10 the IAC claim, the Magistrate Judge recommended denying the 11 section 2255 petition in its entirety. CR Doc. 1206. 12 Accepting the R & R, on January 8, 2001, this court denied 13 that petition; dismissed the case and entered judgment 14 accordingly. 15 exh. A thereto at 9. 16 R & R (Doc. 12) at 3:15-16 (citation omitted); see also id., 17 exh. D thereto at 13. 18 2001, this court filed a COA and an order to proceed in forma 19 pauperis on appeal, finding that the movant “ha[d] made a 20 substantial showing of the denial of a constitutional right 21 with respect to the . . . [IAC] issue[] . . . , and no other 22 issue.” 23 because the movant did not file an opening brief, the Ninth 24 Circuit dismissed his appeal on March 6, 2002. 25 1), exh. F thereto at 17. 26 . . . 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. 27 28 2 “CR” refers to the underlying criminal case, CR 95-320-PHX-RCB, and items docketed therein. -3- 1 II. 2 “Rule 60(b)(6)” Motion Slightly more than nine years later, on February 7, 2011, 3 the movant filed his self-styled “Motion for Relief from 4 Judgment under Rule 60(b)(6)[.]” Mot. (Doc. 1) at 1 (emphasis 5 omitted). 6 establishing “extraordinary circumstances” warranting relief 7 under that Rule. 8 particular, 9 “‘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 10 the Ninth Circuit, resulting in the dismissal of his appeal, 11 despite the issuance of a COA by this court as to movant’s 12 ICA claim. 13 movant is seeking to have the court vacate the judgment and 14 order denying his section 2255 motion; “reopen the § 2255 15 proceedings and reschedule a renewed evidentiary hearing[;]” 16 and appoint counsel to represent him at that hearing. 17 6. 18 that judgment and “reenter [it] providing [him] with a 19 renewed direct appeal from the denial of his § 2255 motion.” 20 Id. 21 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 22 pending motion because the Ninth Circuit appeal divested this 23 court of jurisdiction. Further, the United States argues 24 25 26 27 28 3 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. -4- 1 that this motion is untimely because it was not brought 2 within a “reasonable time” as Rule 60(c)(1) requires. 3 The movant retorts that this court “retains jurisdiction 4 over the § 2255 proceedings” because “the integrity of the 5 habeas proceedings” was “undermined[.]” 6 and 5. 7 this court had issued a COA as to the ICA claim, the Ninth 8 Circuit dismissed the appeal because his lawyer did not file 9 an opening brief. Reply (Doc. 10) at 3 According to the movant, that occurred when, although As a result, the movant maintains that he 10 was deprived of the opportunity to pursue his IAC claim on 11 appeal. 12 III. 13 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 25 26 27 28 4 “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). -5- 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 . . . -6- 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. -7- 1 Discussion 2 I. Report & Recommendation 3 A. 4 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 -8- 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 -9- 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 24 25 26 27 28 5 “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)). - 10 - 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): 24 25 26 27 28 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). - 11 - 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 - 12 - 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 - 13 - 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. - 14 - 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 - 15 - 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 -

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