Tatum v. Ryan et al

Filing 49

ORDER granting 47 Petitioner's Motion to Reopen Proceedings Under Rule 60(b). The Clerk of Court is kindly directed to reopen this matter under Fed. R. Civ. P. 60(b)(6). IT IS FURTHERED ORDERED that Respondents shall file their answer to the Amended Petition for Writ of Habeas Corpus (Doc. 11 ) within forty days from the date of this Order. Petitioner may file a reply to Respondents' answer within thirty days from the date of service of the answer. See document for complete details. Signed by Judge Diane J Humetewa on 5/10/2022. (WLP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bobby Jerry Tatum,
Petitioner,

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ORDER

v.

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No. CV-15-00711-PHX-DJH

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Bobby Jerry Tatum’s Motion to Reopen

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Proceedings Under Rule 60(b) (Doc. 47) (“the Motion”). Respondents have filed a

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Response (Doc. 48). Petitioner has not filed a Reply and the time to do so has expired.

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LRCiv 7.2(d). The Court will grant the Motion.

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I.

Background

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Proceeding pro se, Petitioner filed an Amended Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 on September 28, 2015, in which he sought relief from his

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sentence of life without parole under Miller v. Alabama, 567 U.S. 460 (2012). (Doc. 11).

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These proceedings were stayed on November 2, 2015, to allow for exhaustion of

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Petitioner’s state court post-conviction review proceedings. (Doc. 17). That stay was

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temporarily lifted after receiving notice that the Arizona Supreme Court had denied review

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of Petitioner’s state petition; it was reinstated pending Petitioner’s certiorari proceedings

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in the United States Supreme Court. (Docs. 20; 28). On December 2, 2016, the United

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States Supreme Court granted relief, vacated, and remanded Petitioner’s case back to state

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court for further proceedings in light of Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

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Although the Arizona Court of Appeals ordered the parties to file supplemental briefing

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describing how Montgomery and a recently decided Arizona case, State v. Valencia, 386

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P.3d 392 (Ariz. 2016), affected Petitioner’s claim, the state ultimately waived its right to

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do so and conceded that the United States Supreme Court’s opinion remanding Petitioner’s

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case required the Arizona Court of Appeals to grant post-conviction relief and remand to

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the trial court for resentencing (the “stipulation”). The Arizona Court of Appeals accepted

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the concession and remanded Petitioner’s case to the trial court, where it was set for

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resentencing.

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As a result of these developments and believing “any constitutional infirmity in Mr.

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Tatum’s sentence has been cured,” Petitioner moved to voluntarily dismiss his federal

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habeas Petition. (Doc. 36 at 5). The Court granted the request, and his federal habeas case

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was dismissed, as moot, on March 29, 2018. (Docs. 38, 39).

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In his Motion to Reopen, Petitioner states that while awaiting resentencing, the state

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moved to withdraw from the stipulation presented to the Arizona Court of Appeals based

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on the United States Supreme Court’s decision in Jones v. Mississippi, 141 S. Ct. 1307

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(2021). (Doc. 47 at 4). The trial court granted the state’s motion on January 25, 2022, and

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as such, Petitioner’s resentencing did not occur. (Id.) Petitioner says these circumstances

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justify reopening his federal habeas proceedings.

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II.

Discussion

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Under Federal Rule of Civil Procedure 60(b), a Court may, on “motion and just

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terms,” relieve a party from final judgment under certain circumstances, including, newly

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discovered evidence, fraud by the opposing party, or a mistake committed by the court—

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and a sixth, catch-all category, that allows a court to reconsider a final judgment for “any

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other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1)–(6).

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Petitioner first argues there is cause to reopen the case under Rule 60(b)(3) because

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the state made a fraudulent representation that it would resentence Petitioner, and in

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reliance on that statement, Petitioner voluntarily dismissed his habeas proceedings.

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Alternatively, Petitioner argues that reopening is proper under Rule 60(b)(6), the Rule’s

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catch-all provision, because doing so is in the interests of justice. (Doc. 47). Respondents

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disagree there is a basis for the Court to reopen the case under Rule 60(b)(3). They point

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out that “the State moved to withdraw from the stipulation based on the Supreme Court’s

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subsequent decision in Jones, which clarified the Court’s previous decisions in Miller and

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Montgomery, and the state court granted the State’s motion based on that change in law.”

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(Doc. 48 at 6). Respondents nevertheless agree that there is cause to reopen the case under

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Rule 60(b)(3). (Doc. 48). They concede that Petitioner has satisfied the “reasonable time”

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filing requirement of Rule 60(b)(6), and that extraordinary circumstances justify reopening

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the judgment. (Doc. 48 at 5). Respondents state “[t]here is no question that Tatum

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voluntarily moved to dismiss his petition because of the resentencing stipulation.” (Id.)
Rule 60(b)(3) — Misrepresentation

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A.

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At this juncture, the Court rejects the premise that reopening is warranted because

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the state misrepresented that it would resentence Petitioner. A party seeking relief from a

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judgment under Rule 60(b)(3) must prove “fraud, misrepresentation, or other misconduct”

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by clear and convincing evidence. Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir.

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2004). At the heart of Petitioner’s argument is a dispute of applicable law on whether

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Petitioner is constitutionally required to be resentenced. Such disagreements do not

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constitute fraud. Indeed, “[i]f every dispute of fact or law constituted fraud, then ‘nearly

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every action would be vulnerable to re-litigation under Rule 60(b)(3).’”

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Beaudoin v. Rhino Entertainment Co., 2019 WL 5960084, at *2 (D. Ariz. Nov. 12, 2019)

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(citing Scott v. Donahoe, 2015 WL 546020, at *5 (C.D. Cal. Feb. 10, 2015)).

Zagorsky-

Rule 60(b)(6) — Extraordinary Circumstances

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B.

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The Court nevertheless agrees with the parties that there is cause to reopen this case

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under Rule 60(b)(6). Rule 60(b)(6) grants federal courts broad authority to relieve a party

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of a final judgment.

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reasonable time,” and must demonstrate “extraordinary circumstances” justifying

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reopening the judgment. See Fed. R. Civ. P. 60(c)(1); Pioneer Inv. Servs. Co. v. Brunswick

A party seeking relief under Rule 60(b)(6) must do so “within a

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Assoc. Ltd. P’ship, 507 U.S. 380, 393 (1993); Bynoe v. Baca, 966 F.3d 972, 979 (9th Cir.

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2020).1 Extraordinary circumstances occur where there are “other compelling reasons” for

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opening the judgment. Klapprott, 335 U.S. at 613.

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Petitioner’s Motion is timely under the Rule. Petitioner alerted the Court of his need

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to reopen the matter when he asked to be appointed counsel to prepare the filing and

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represent him when and if the proceedings were reopened. (See Doc. 40). On February

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28, 2022, the Court ultimately granted Petitioner’s request for appointed counsel, and

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directed him to file any motion to reopen within 28 days.

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subsequently asked for a short extension of time to file the motion (Doc. 45), which the

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Court granted for good cause (Doc. 46). The Motion to Reopen, filed on April 11, 2022,

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is therefore timely.

(Doc. 43).

Petitioner

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Moreover, as Respondents concede, extraordinary circumstances justify reopening

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these proceedings. The sole reason judgment was entered in this matter was because

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Petitioner reasonably understood that the state had agreed to his resentencing, which was

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the relief he was seeking in his Amended Petition. Now that those conditions no longer

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exist, Petitioner’s habeas case should proceed. The rare conditions under which relief may

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be granted under Rule 60(b)(6) are satisfied here.

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion to Reopen Proceedings Under Rule

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60(b) (Doc. 47) is granted. The Clerk of Court is kindly directed to reopen this matter

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under Fed. R. Civ. P. 60(b)(6).

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…

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…

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…

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…

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Typically, a motion brought under Rule 60(b)(6) may also not be “premised on another
ground delineated in the Rule.” Bynoe, 966 F.3d at 979. The Court has rejected Petitioner’s
first premise—that these proceedings should be reopened due to misrepresentation—and
thus finds that Rule 60(b)(6) may be applied. Klapprott v. United States, 335 U.S. 601,
613 (1949).
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IT IS FURTHERED ORDERED that Respondents shall filed their answer to the

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Amended Petition for Writ of Habeas Corpus (Doc. 11) within forty days from the date of

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this Order. Petitioner may file a reply to Respondents’ answer within thirty days from the

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date of service of the answer.

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Dated this 10th day of May, 2022.

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Honorable Diane J. Humetewa
United States District Judge

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