Little v. Schriro et al

Filing 65

ORDER denying Petitioner's 45 Motion for relief from judgment. The denial of a motion under Rule 60(b) is a final, appealable order. Thus no certificate of appealability is required to appeal from this court's order. Nevertheless, to avoid any question, it is further ORDERED GRANTING a certificate of appealability. Signed by Senior Judge Frederick J Martone on 5/11/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Peter James Little,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV 06-02591-PHX-FJM
ORDER

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The court has before it petitioner’s Motion for relief from judgment (Doc. 45),

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respondents’ Response (Doc. 53), petitioner’s Reply (Doc. 57), the Report and

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Recommendation (Doc. 58), petitioner’s Objections (Doc. 62) and respondents’ Response

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(Doc. 64).

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On May 19, 2008, some 10 years ago, we denied petitioner’s habeas petition under

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28 U.S.C. §2254 (Doc. 34) and judgment was entered (Doc. 35). We now have before us

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petitioner’s Motion for relief from judgment under Rule 60(b), Fed. R. Civ. P. (Doc. 45).

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In reliance on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012), petitioner contends that

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his claim of ineffective assistance of trial counsel is no longer procedurally defaulted because

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Martinez allows the ineffective assistance of post conviction counsel to establish cause to

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excuse that default.

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Relief from a judgment under Rule 60(b)(6) must be sought “within a reasonable

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time.” Rule 60(c)(1). Petitioner filed his motion just short of 6 years after Martinez was

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decided. The Magistrate Judge concluded that Martinez does not apply to any of petitioner’s

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claims other than ineffective assistance of trial counsel; that Rule 60(b) has some application

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to habeas cases; that the motion here is not a successive habeas petition; that petitioner lacked

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diligence by failing to file his motion until nearly 6 years after Martinez was decided and 3

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years after petitioner claims he learned of the existence of Martinez; that the more than 8

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year delay between the finality of this court’s judgment and the filing of the motion is

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substantial; and that despite other factors favorable to petitioner, his lack of diligence and the

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extraordinary delay in this case are such that it cannot be said that the motion was brought

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

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The Magistrate Judge

recommended that we deny relief.

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Petitioner objects to the R & R’s conclusions on diligence, delay and the weighing of

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relevant factors. He contends he was diligent because he chose to go back to state court after

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he learned of Martinez, but as the Magistrate Judge noted, Martinez would only be relevant

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to relief from this court’s judgment. Petitioner tries mightily to suggest that an 8 to 9 year

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interval is not delay, but none of the suggestions has merit. He contends that the weighing

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was erroneous, but this ignores the fact that the primary consideration under Rule 60(c)(1)

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is one of timing and reasonableness. We agree with the Magistrate Judge that the motion

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here was not filed “within a reasonable time,” and that there is no extraordinary circumstance

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that would justify destroying the finality of this court’s judgment. After de novo review

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under Rule 72(b)(3), Fed. R. Civ. P., we accept the recommended disposition of the

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Magistrate Judge. (Doc. 58).

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It is therefore ORDERED DENYING petitioner’s Motion for relief from judgment.

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(Doc. 45).

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The denial of a motion under Rule 60(b) is a final, appealable order. Thus no

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certificate of appealability is required to appeal from this court’s order. Nevertheless, to

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avoid any question, it is further ORDERED GRANTING a certificate of appealability.

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DATED this 11th day of May, 2018.

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