Salerno v. Schriro, et al

Filing 82

ORDER denying 74 Motion to Reopen Case. IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. See document for complete details. Signed by Senior Judge Roslyn O Silver on 11/15/2022. (WLP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Fox Joseph Salerno,
Petitioner,

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v.

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Dora B Schriro, et al.,

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No. CV-05-01277-PHX-ROS
ORDER

Respondents.

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On March 30, 2007, the Court issued an Order adopting a Report and

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Recommendation and denied Petitioner Fox Salerno’s petition for writ of habeas corpus.

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(Doc. 64). As relevant here, that Order addressed and rejected Petitioner’s arguments that

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his sentences from state court convictions were unlawful under Apprendi v. New Jersey,

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530 U.S. 466 (2000) or Blakely v. Washington, 542 U.S. 296 (2004). Less than a week

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later, Petitioner filed a motion for reconsideration. (Doc. 66). That motion presented

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additional arguments regarding what Petitioner viewed as “Apprendi/Blakely” errors in his

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sentences. (Doc. 66). The Court denied that motion on April 13, 2007. (Doc. 71). On

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November 7, 2007, the Ninth Circuit denied Petitioner’s request for a certificate of

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appealability. (Doc. 73).

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On September 24, 2022, Petitioner filed a “Motion to Re-Open Case.” (Doc. 74).

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That motion argues Petitioner recently “came across [the] R&R and re-read it.” (Doc. 74

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at 2). In doing so, Petitioner realized his sentences violated the requirements of Apprendi,

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apparently in some way he did not articulate in his original petition or motion for

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reconsideration. (Doc. 74 at 3). In his motion filed this year, Petitioner claims his sentence

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was “a miscarriage of justice, and a structural and fundamental error.” (Doc. 74 at 1).

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Petitioner also claims the sentencing error meant the state trial court “did not have subject

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matter jurisdiction” and jurisdiction “cannot be waived and cannot be time barred.” (Doc.

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74 at 5). Respondents filed an opposition arguing Petitioner’s motion is untimely, fails on

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its merits, and likely qualifies as a “second or successive” habeas petition that must be

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authorized by the Court of Appeals. (Doc. 80).

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While unclear, Petitioner’s “Motion to Re-Open Case” appears to be seeking relief

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pursuant to Federal Rule of Civil Procedure 60. (Doc. 74 at 5-6). Because of the statutory

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limitations on repetitive habeas litigation, the threshold issue is whether that motion should

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be viewed as a Rule 60 motion that may be heard by this Court or if Petitioner’s motion

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should be viewed as a “second or successive habeas corpus application” that can only be

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heard by this Court after Petitioner obtains permission from the Court of Appeals. 28

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U.S.C. § 2244(b)(1), (b)(3)(A).

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A post-judgment filing purporting to be a Rule 60 motion actually is a “second or

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successive habeas corpus application” if it “seeks to add a new ground for relief or attacks

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the federal court’s previous resolution of a claim on the merits.” Balbuena v. Sullivan, 980

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F.3d 619, 638 (9th Cir. 2020). Of special relevance here, a motion must be viewed as a

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“second or successive habeas corpus application” if it “argues a change in substantive law

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justifies relief from the previous denial of a claim.” Id. Under this standard, Petitioner’s

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motion is a “second or successive habeas corpus application” that cannot be heard absent

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permission from the Court of Appeals.

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Petitioner’s “Motion to Re-Open Case” makes clear he is attacking on the merits the

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denial of his habeas petition in 2007. According to Petitioner, the R&R issued in 2007,

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and subsequently adopted by the Court, “incorrectly concluded” his state court sentences

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were permissible. (Doc. 74 at 4). Petitioner’s motion also states, at the time Petitioner

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filed his habeas petition in 2005, “Apprendi was still being hashed out and the defining

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case laws came out in 2006 & 2007.” (Doc. 74 at 2). In effect, Petitioner argues there have

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been changes in the governing law since 2007 such that he is now entitled to relief. Arguing

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the merits of the previous denial, and claiming subsequent legal developments mean he is

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now entitled to relief, establish Petitioner’s “Motion to Re-Open Case” qualifies as a

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second or successive habeas corpus application. That motion, therefore, cannot be heard

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without permission from the Court of Appeals. 28 U.S.C. § 2244(b)(1).

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Finally, a certificate of appealability “is required in order to appeal the denial of a

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Rule 60(b) motion for relief from a district court’s judgment denying federal habeas relief.”

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Martinez v. Shinn, 33 F.4th 1254, 1261 (9th Cir. 2022). Petitioner’s motion is not, in fact,

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a proper Rule 60 motion. But even if so construed, the motion does not present any

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plausible basis for relief. Therefore, jurists of reason would not “find it debatable whether

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the [Court] abused its discretion in denying” Petitioner’s Rule 60 motion. Id. No certificate

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of appealability will be issued.

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Accordingly,

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IT IS ORDERED the Motion to Reopen Case (Doc. 74) is DENIED.

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IT IS FURTHER ORDERED a Certificate of Appealability is DENIED.

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Dated this 15th day of November, 2022.

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Honorable Roslyn O. Silver
Senior United States District Judge

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