Luke v. Schriro et al

Filing 27

ORDER: IT IS ORDERED that the Motion for Relief and Motion for Appointment of counsel (Doc. 25 ) is DENIED. IT IS FURTHER ORDERED that the Court denies issuance of a certificate of appealability [see attached Order for details]. Signed by Senior Judge James A Teilborg on 4/19/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tyerel Darnel Luke,
Petitioner,

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ORDER

v.

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No. CV-07-01713-PHX-JAT

Dora B Schriro, et al.,

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Respondents.

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Pending before the Court is Petitioner’s Motion for Rule 60 Relief from a

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Judgment or Order, Motion for Appointment of an Attorney, and Motion for

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Appointment of a Mental Health Doctor (“Motion”). (Doc. 25). Respondent did not

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respond to the Motion.

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Petitioner seeks relief under Rule 60(b)(6). (Id. at 2). He appears to argue that he

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received ineffective assistance of counsel. (Id.) This is so, he alleges, because his trial

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attorney failed to obtain a medical professional to determine his mind set at the time of

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the offense, failed to tell Petitioner that he could have had such a determination, and did

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not examine Petitioner’s history of mental illness. (Id.) Petitioner points to the subsequent

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change in substantive law brought about by Martinez v. Ryan, 566 U.S. 1 (2012), as a

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“reason justifying relief” from the Court’s previous denial of his petition. (Doc. 25 at 2).

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He further argues that the Arizona Supreme Court did not realize these facts when it

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denied his petition for review on November 26, 2017. (Id.)

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Although claims for relief under Rule 60(b)(6) are not subject to the one-year

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statute of limitations imposed by Rule 60(c), they must still “be made within a reasonable

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time.” Fed. R. Civ. P. 60(c)(1). “What constitutes ‘reasonable time’ depends upon the

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facts of each case, taking into consideration the interest in finality, the reason for delay,

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the practical ability of the litigant to learn earlier of the grounds relied upon, and

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prejudice to other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981). This

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Court denied Petitioner’s previous Petition for Writ of Habeas Corpus in 2008, nearly a

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decade ago. (Doc. 22). Because of this, the interest in finality strongly weighs in favor of

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finding the motion untimely. See Adams v. Hedgpeth, No. LA CV 11-03852 VBF-FFM,

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2016 WL 4035607, at *3 (C.D. Cal. June 8, 2016). Moreover, other courts have faced the

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precise issue presented by this motion—a Rule 60(b)(6) for relief on the basis of the

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change in habeas law established in Martinez—and found such motions untimely even

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though those cases involved delays shorter than the delay here. Moses v. Joyner, 815 F.3d

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163, 166–67 (4th Cir. 2016) (collecting cases holding Martinez-based 60(b) motions

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untimely for delay). For this reason, the Court finds the Motion untimely under Rule

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60(c).

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Petitioner also fails to show the kind of “extraordinary circumstances” necessary

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to justify a grant of relief under Rule 60(b)(6). Gonzalez v. Crosby, 545 U.S. 524, 535

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(2005) (“Such circumstances will rarely occur in the habeas context.”). The Supreme

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Court has made clear that a change in decisional law is not, by itself, an “extraordinary

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circumstance” sufficient to grant relief under Rule 60(b)(6). Id. at 536–38. Furthermore,

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several circuits have ruled on this precise issue and concluded that the change in the law

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effected by Martinez “falls well short of ‘extraordinary.’” Moses, 815 F.3d at 168–69

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(collecting cases). Additionally, it is not clear that Martinez even calls the Court’s prior

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order denying his Petition into question. (Doc. 19). If a subsequent change in decisional

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law that renders a district court’s ruling incorrect is not an “extraordinary circumstance”

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it follows a fortiori that a subsequent change in law that does not render the Court’s prior

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order incorrect is also not an “extraordinary circumstance.” See Gonzalez, 545 U.S. at

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536.

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Petitioner also seeks appointment of counsel. “There is no constitutional right to

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counsel on habeas.” Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). “In deciding

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whether to appoint counsel in a habeas proceeding, the district court must evaluate the

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likelihood of success on the merits as well as the ability of the petitioner to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look,

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718 F.2d 952, 954 (9th Cir. 1983). As explained above, Petitioner’s motion is both

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untimely and without merit. Therefore, appointment of counsel is denied because

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Petitioner will not succeed on the merits.

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Finally, the Court denies a certificate of appealability to Petitioner for failure to

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make a substantial showing of the denial of a constitutional right. See 28 U.S.C. §

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2253(c)(2) (2012).

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Based on the foregoing,

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IT IS ORDERED that the Motion for Relief and Motion for Appointment of

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counsel (Doc. 25) is DENIED.
IT IS FURTHER ORDERED that the Court denies issuance of a certificate of
appealability.
Dated this 19th day of April, 2018.

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