Harris v. Matevousian

Filing 25

ORDER Denying Plaintiff's Motions to Reopen the Proceeding Pursuant to Rule 60(b) re 22 , 24 , signed by District Judge Dale A. Drozd on 12/21/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT MARVIN HARRIS,

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Petitioner,

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No. 1:16-cv-00242-DAD-JLT

v.
ANDRE MATEVOUSIAN,

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Respondent.

ORDER DENYING PETITIONER’S MOTION
TO REOPEN THE PROCEEDING
PURSUANT TO RULE 60(b)
(Doc. Nos. 22, 24)

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 31, 2016, the court adopted the assigned magistrate judge’s findings and

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recommendations (Doc. No. 4), dismissed petitioner’s writ of habeas corpus, and directed the

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Clerk of the Court to enter judgment and close the case. (Doc. No. 11.) Judgment was entered

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that same day. (Doc. No. 12.)1 On October 5, 2017, petitioner submitted a motion to reopen this

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closed action pursuant to Federal Rule of Civil Procedure 60(b). (Doc. No. 22.) On December

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18, 2017, petitioner submitted a second motion to reopen this action. (Doc. No. 24.)

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On December 9, 2016, the Ninth Circuit Court of Appeals denied petitioner’s requests for
certificates of appealability. (Doc. No. 19.)
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Federal Civil Procedure Rule 60(b) provides that “[o]n motion and upon such terms as are

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just, the court may relieve a party. . . from a final judgment, order, or proceeding for the

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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other

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reason justifying relief from the operation of the judgment.” “The law in this circuit is that errors

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of law are cognizable under Rule 60(b).” Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th

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Cir. 1982).

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances” exist. Harvest v. Castro,

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531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing

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reconsideration under Rule 60(b)(1)–(5)). The moving party “must demonstrate both injury and

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circumstances beyond his control.” Id. (internal quotation marks and citation omitted). Further,

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Local Rule 230(j) requires, in relevant part, that in moving for reconsideration of an order

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denying or granting a prior motion, a party must show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown” previously, “what

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other grounds exist for the motion,” and “why the facts or circumstances were not shown” at the

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time the substance of the order which is objected to was considered.

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Petitioner presents three grounds upon which he believes the requested relief should be

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granted: clear error, newly discovered evidence, and intervening change in the law. (Doc. No. 22

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at 7.) The court construes petitioner’s motion to be brought under Rule 60(b)(1), (2), and (6),

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respectively. Liberty Mut. Ins. Co., 691 F.2d at 441 (holding that a district court may correct an

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error of law under Rule 60(b)(1)); Rule 60(b)(2) (permitting relief where petitioner comes

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forward with “newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b)”); Phelps v. Alameida, 569 F.3d

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1120, 1132 (9th Cir. 2009) (analyzing a habeas petition arguing intervening change in the law

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under Rule 60(b)(6)).

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Motions made under Rule 60(b)(1), (2), and (3) may be made “no more than a year after

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the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). As

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stated above, judgment in this case was entered by this court on March 31, 2016. (Doc. No. 12.)
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The pending motion to reopen the action was not filed until October 5, 2017, far more than one

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year after judgment was entered in this action. (Doc. No. 22.) Petitioner’s motions under Rule

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60(b)(1) and (2) will therefore be denied as untimely.
Rule 60(b)(6) permits the court to relieve a party from final judgment for any “reason that

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justifies relief.” Relief under this provision “will not be granted unless the moving party is able

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to show both injury and circumstances beyond its control prevented timely action to protect its

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interest.” Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009).

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In support of his contention that he is entitled to have his case reopened due to an

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intervening change in the law, petitioner directs the court to the recent opinion of the Eleventh

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Circuit in McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017)

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(en banc).2 The petitioner in McCarthan pleaded guilty in 2003 to being a felon in possession of

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a firearm under 18 U.S.C. § 922(g) and received a sentence enhancement under the Armed Career

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Criminal Act (“ACCA”) for having suffered five prior convictions for a “serious drug offense” or

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“violent felony,” including one conviction for escape. Id.at 1080. Following his conviction and

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sentencing, he unsuccessfully moved to vacate his sentence under 28 U.S.C. § 2255 on the ground

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of ineffective assistance of counsel, but did not challenge the legality of his sentencing

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enhancement at that time. Id. Subsequently, the Supreme Court ruled that some forms of the

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crime of escape do not qualify as violent felonies under the ACCA. See Chambers v. United

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States, 555 U.S. 122, 130 (2009). Petitioner then sought to challenge his sentence under 28

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U.S.C. § 2241, arguing that his original § 2255 motion was rendered “inadequate or ineffective”

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due to the intervening change in law. See Hernandez v. Campbell, 204 F.3d 861, 864–65 (9th

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Cir. 2000) (“Under the savings clause of § 2255 . . . a federal prisoner may file a habeas corpus

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petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is

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‘inadequate or ineffective to test the legality of his detention’”) (quoting § 2255).

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The question in McCarthan was whether the intervening change in law that undermined
the legality of the petitioner’s sentence made his original § 2255 motion “inadequate or

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Petitioner was originally convicted in a District Court within the Eleventh Circuit.
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ineffective,” such that he was permitted to file a second challenge to that sentence. The Eleventh

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Circuit overruled a prior holding of that Circuit and held that it did not. McCarthan, 851 F.3d at

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1099. Under the new rule in McCarthan, a petitioner seeking to collaterally attack the legality of

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his sentence must raise such an argument in his first § 2255 motion. Even if such an argument is

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contrary to controlling law, “a motion to vacate remains an adequate and effective remedy for a

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prisoner to raise the claim and attempt to persuade the court to change its precedent, and failing

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that, to seek certiorari in the Supreme Court.” Id. Because the petitioner in McCarthan had not

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challenged the legality of his sentence in his § 2255 motion, he was not entitled to do so via a

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§ 2241 motion, despite the change in controlling law which arguably could have shortened the

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length of his sentence.

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Here, petitioner offers no explanation as to how the holding of the Eleventh Circuit in

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McCarthan constitutes an “intervening change in law” that would allow him to challenge his

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conviction. McCarthan narrows rather than expands the ability of an individual such as petitioner

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to challenge his conviction and sentence, since it requires a petitioner to raise all legal challenges

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in the first § 2255 motion. That decision does not call into question the legality of petitioner’s

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original sentence or conviction here. The court therefore finds that petitioner is not entitled to

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relief on that basis.

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In his more recently filed motion to reopen this case, petitioner advances several new

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arguments as to why he should be permitted to proceed with his claim under 28 U.S.C. § 2241.

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(Doc. No. 24.) The court has reviewed these arguments and concludes that all of them amount to

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disagreements with the court’s prior legal rulings. As stated above, however, challenges to legal

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conclusions under Rule 60(b)(1) must be made within one year of entry of judgment. Petitioner

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has failed to comply with this timeline.

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Accordingly, petitioner’s motions to reopen the proceeding (Doc. No. 22, 24) are denied.
IT IS SO ORDERED.
Dated:

December 21, 2017
UNITED STATES DISTRICT JUDGE

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