Jordan v. Ryan et al

Filing 34

ORDER: IT IS ORDERED that Petitioner's motion to reopen this case (Doc. 33 ) is denied. IT IS FURTHER ORDERED that to the extent Doc. 33 could be considered a motion under Federal Rule of Civil Procedure 60, rather than a motion for reconsideration, a certificate of appealability is denied as to this Order [see attached Order for details]. Signed by Senior Judge James A Teilborg on 3/5/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Henderson Jordan,

No. CV-14-00747-PHX-JAT
Petitioner,

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v.

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ORDER

Charles Ryan, et al.,

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Respondents.

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On July 8, 2016, this Court issued the following Order on Petitioner’s thenpending motion under Federal Rule of Civil Procedure 60(b):
On September 1, 2015, this Court denied Petitioner’s Petition for
Writ of Habeas Corpus and entered judgment on the Petition. (Docs. 24
and 25). Petitioner did not appeal. Beyond the deadlines for filing motions
for reconsideration (14 days under Local Rule Civil 7.2(g)) or motions to
alter or amend judgment (28 days under Federal Rule of Civil Procedure
59(e)), Petitioner filed a “motion to reopen” on January 15, 2016. (Doc.
27). Respondent did not respond to the motion.
Petitioner claims to seek relief under Federal Rules of Civil
Procedure 60(b)(1), 60(b)(3), and 60(b)(6). The former two Rules have a
one year statute of limitations from the entry of judgment. Fed. R. Civ.
Pro. 60(c)(1).
Preliminarily, the Court has read the entire motion, and notes that
Petitioner makes no actual argument under Federal Rules of Civil
Procedure 60(b)(1), 60(b)(3) or 60(b)(6). Instead Petitioner argues for
reconsideration of this Court’s September 1, 2015 Order. Thus, what
Petitioner filed is an untimely motion under Federal Rule of Civil
Procedure 59, which this Court does not have discretion to consider. See
Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992). The Court
could deny the motion on this basis.
Nonetheless, turning to Federal Rule of Civil Procedure 60(b)(1),
neither party has made any argument of mistake, inadvertence, surprise, or
excusable neglect. See Fed. R. Civ. Pro. 60(b)(1). However, Petitioner has
alleged various factual and legal errors.

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“The Ninth Circuit has specifically recognized that errors of law
are cognizable under Rule 60(b). See Liberty Mut. Ins. Co. v.
EEOC, 691 F.2d 438, 441 (9th Cir.1982). It has also noted that,
where the legal error is a mistake by the court, Rule 60(b)(1) is
applicable. See id.; see also In re Int'l Fibercom, Inc., 503 F.3d
933, 941 n.7 (9th Cir. 2007).”
Prado v. Quality Loan Serv. Corp., No., 2014 WL 2119864, at *2 (N.D.
Cal. May 21, 2014).
When considering “mistake” the Court must consider four factors.
Lemoge v. U.S., 587 F.3d 1188, 1192 (9th Cir. 2009). Specifically, “(1) the
danger of prejudice to the opposing party; (2) the length of delay and its
potential impact on the proceedings; (3) the reason for the delay; and (4)
whether the movant acted in good faith.” Bateman v. U.S. Postal Servs.,
231 F.3d 1220, 1223-24 (9th Cir. 2000). Since neither party made any
argument regarding any of these factors, it is very difficult for the court to
apply them. However, to the extent obtaining relief under Rule 60(b)(1) is
the movant’s burden, Petitioner has failed to show that any of these factors
weigh in his favor. Accordingly, relief under Federal Rule of Civil
Procedure 60(b)(1) is denied.
Although the Petitioner cited Federal Rule of Civil Procedure
60(b)(3), the Court will not consider fraud, misrepresentation, or
misconduct by the opposing party, because there is no evidence or
argument showing the presence of these issues. See Fed. R. Civ. Pro.
60(b)(3).
Finally, although the Court deems this to be an untimely motion
under Federal Rule of Civil Procedure 59, the Court will nonetheless
consider the merits under Federal Rule of Civil Procedural 60(b)(6). “Rule
60(b)(6) should be ‘used sparingly as an equitable remedy to prevent
manifest injustice’” and should be used only in “‘extraordinary
circumstances to prevent or correct an erroneous judgment.’” In re Int'l
Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007) (citing United States v.
Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)).
As indicated above, the Court has reviewed the entire motion. The
motion simply reargues matters that this Court already considered, de novo,
in ruling on Petitioner’s objections to the Report and Recommendation.
See (Doc. 24 at 2, n. 2). Nothing in the motion justifies relief for all of the
reasons stated in the Order of September 1, 2015. Accordingly, to the
extent Petitioner has filed a proper motion under Federal Rule of Civil
Procedure 60(b)(6), relief is denied.
In his motion, Petitioner also seeks appointment of counsel. For the
reasons stated above, the currently pending motion is untimely and,
alternatively, without merit. Thus, appointment of counsel is denied
because Petitioner will not succeed on the merits. See Weygandt v. Look,
718 F.2d 952, 954 (9th Cir. 1983).
On February 4, 2016, Petitioner requested to amend his pending
motion to add a request for a certificate of appealability. The Court permits
the request to amend, but denies a certificate of appealability. Petitioner
was required to timely appeal this Court’s judgment of September 1, 2015,
and nothing in the pending motion renews or revives that expired deadline.
See Sears, Sucsy & Co. v. Insurance Co. of N. America, 392 F. Supp. 398,
409 (N.D. Ill. 1974). Further, the motion to reopen is without merit for the
reasons stated in the September 1, 2015 Order; thus, a certificate of
appealability is denied for the reasons stated in the September 1, 2015
Order.
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Based on the foregoing,
IT IS ORDERED that the motion to reopen case and motion for
appointment of counsel (Doc. 27) is denied.
IT IS FURTHER ORDERED that the motion to amend the motion
to reopen (Doc. 28) is granted to the extent that the Court permits
amendment to add the request for a certificate of appealability, but the
request for a certificate of appealability is denied.

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(Doc. 29).

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Petitioner appealed the July 2016 order to the Court of Appeals. The Court of
Appeals denied a certificate of appealability. (Doc. 32).

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Currently pending before the Court is another motion to reopen this case. (Doc.

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33). In this motion, Petitioner appears to be arguing that this Court erred in its original

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decision (in 2015) when the Court denied Petitioner a certificate of appealability. (As

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indicated above, Petitioner did not appeal this Court’s 2015 decision).

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Having reviewed the motion, the Court does not find any basis to reconsider its

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decision to deny a certificate of appealability as to the 2015 Order.1 Alternatively, to the

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extent Petitioner is actually seeking reconsideration of the denial of a certificate of

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appealability as to the 2016 Order, the Court of Appeals reached the same decision; thus

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that denial is subject to the Rule of Mandate and cannot be reconsidered by this Court.

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See Gonzalez v. Arizona, 677 F.3d 383, 390 (9th Cir. 2012).

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Accordingly,

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IT IS ORDERED that Petitioner’s motion to reopen this case (Doc. 33) is denied.

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Additionally, this request is untimely.
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IT IS FURTHER ORDERED that to the extent Doc. 33 could be considered a

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motion under Federal Rule of Civil Procedure 60, rather than a motion for

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reconsideration, a certificate of appealability is denied as to this Order.2

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Dated this 5th day of March, 2018.

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See generally Lynch v. Blodgett, 999 F.2d 401 (9th Cir. 1993) (requiring a
certificate of appealability on a Rule 60 motion).
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