Rybolt v. Ryan

Filing 60

ORDER denying 53 Motion to Correct Errors in Document Number: 51 Court Order. (See document for further details). Signed by Senior Judge Paul G Rosenblatt on 5/6/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny El Rybolt,
Petitioner,

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vs.
Charles L. Ryan,
Respondent.

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No. CV-11-01119-PHX-PGR
ORDER

In an Order (Doc. 51) entered on March 4, 2013, the Court dismissed the

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petitioner’s § 2254 petition with prejudice on the ground that it was time-barred

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due to being filed more than ten years after the expiration of the AEDPA’s one-

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year statute of limitations. In the same order, the Court denied a number of the

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petitioner’s pending motions, including his Motion to Reverse and Vacate as

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Judgment is Void-Rule 6(c)(4) (Doc. 31), filed June 6, 2012. Pending before the

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Court is the petitioner’s Motion to Correct Errors in Document: 51 Court Order

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(Doc. 53), filed March 7, 2013, which the Court construes as a request that the

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Court reconsider the denial of the Motion to Reverse and Vacate as Judgment is

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Void-Rule 6(c)(4) (Doc. 31). The petitioner filed a Notice of Appeal (Doc. 54)

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from the Court’s judgment of dismissal on April 2, 2013.

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Having reviewed the reconsideration motion, the Court finds that it should

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be denied. The Court acknowledges that the petitioner filed a Correction of

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Cover Page (part of Doc. 33) on June 14, 2012, in which he stated that the

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motion he wants reconsidered should have been denominated as a Rule 60(c)(4)

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motion, and the Court understood at the time it entered its order and judgment of

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dismissal that the petitioner was arguing that his state court judgment should be

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vacated as being void, and presumed that he was referring to Fed.R.Civ.P.

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60(b)(4).1 The Court denied the motion to vacate, using the title of the motion as

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it was originally filed, because such a motion was procedurally improper at the

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time it was filed because no judgment had yet been entered on the petitioner’s

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federal habeas petition. Since a Rule 60 motion to vacate cannot be substituted

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for a federal habeas action, it cannot be properly filed during the pendency of the

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federal habeas action. Therefore,

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IT IS ORDERED that the petitioner’s Motion to Correct Errors in Document
Number: 51 Court Order (Doc. 53) is denied.
DATED this 6th day of May, 2013.

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Since there is no Federal Rule of Civil Procedure 60(c)(4), the Court
assumed that the “Rule 60(c)(4)” cited by the petitioner was a misguided
reference to Arizona Rule of Civil Procedure 60(c)(4), which is the state
counterpart to Fed.R.Civ.P. 60(b)(4). The state procedural rule has no
applicability in this federal habeas action.
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