Begay v. United States of America

Filing 50

ORDER that Petitioner's motion for reconsideration (Doc. 48 ) is denied. FURTHER ORDERED that a certificate of appealability is denied. See generally Lynch v. Blodgett, 999 F.2d 401 (9th Cir. 1993) (requiring a certificate of appealability on a Rule 60 motion). Signed by Senior Judge James A Teilborg on 1/17/18. (SJF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ivan Ray Begay,
Petitioner,

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v.

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United States of America,

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No. CV-10-08221-PCT-JAT
CR-00-1222-PCT-PGR
ORDER

Respondent.

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Pending before the Court is Petitioner’s motion for relief from judgment pursuant

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to Federal Rule of Civil Procedure 60(b)(6). (Doc. 48). Petitioner’s motion has two

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parts.

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The first part seeks the recusal of Judge Rosenblatt. Because this case has now

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been reassigned to the undersigned, the Court finds that portion of the motion to be moot.

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The second part seeks to have Petitioner’s conviction set aside for various reasons.

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This case was originally filed as a motion to vacate, set aside or correct sentence. (Doc.

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1). Relief was denied March 7, 2011. (Doc. 8). A certificate of appealability was denied

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at the district court level (Doc. 8), and denied by the Court of Appeals (Doc. 22). By this

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Court’s count, Petitioner has moved to reconsider the decision in this case on 12 prior

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occasions. (Docs. 13, 14, 15, 25, 26, 28, 29, 32, 35, 36, 39, and 43). Petitioner also

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sought leave to file a successive petition, which the Court of Appeals denied. (Doc. 20).

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In this thirteenth motion, Petitioner again raises factual contentions that existed

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and were ripe at the time Petitioner filed his original motion. Thus, while this motion is

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called a Rule 60(b)(6) motion, it is really a successive § 2255 petition. As noted above,

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the Court of Appeals has already denied Petitioner’s request to file a successive petition.

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Further, even if the Court were to treat the motion as one under Federal Rule of

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Civil Procedure 60(b)(6), “Rule 60(b)(6) should be ‘used sparingly as an equitable

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remedy to prevent manifest injustice’” and should be used only in “‘extraordinary

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circumstances to prevent or correct an erroneous judgment.’” In re Int'l Fibercom, Inc.,

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503 F.3d 933, 941 (9th Cir. 2007) (citing United States v. Washington, 394 F.3d 1152,

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1157 (9th Cir. 2005)). Here, nothing in Petitioner’s motion shows that the judgment was

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erroneous or incorrect.

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Therefore,

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IT IS ORDERED that Petitioner’s motion for reconsideration (Doc. 48) is denied.

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IT IS FURTHER ORDERED that a certificate of appealability is denied. See

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generally Lynch v. Blodgett, 999 F.2d 401 (9th Cir. 1993) (requiring a certificate of

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appealability on a Rule 60 motion).

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Dated this 17th day of January, 2018.

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