Lyons, et al v. White, et al

Filing 109

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/10/2017 DENYING petitioner's 107 motion for appointed counsel. IT IS RECOMMENDED petitioner's 106 Rule 60(b) motion be dismissed as barred by res judicata; and the Clerk should be ordered to not accept any further filings in this action by petitioner. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIE LYONS,

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Petitioner,

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No. 2:96-cv-00784-GEB-GGH

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

THEODORE WHITE,

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Respondent.

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INTRODUCTION AND SUMMARY

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Petitioner brings his fourth Fed. R. Civ. Pro. 60 (b) motion seeking to find some way to

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invalidate his state conviction for a multitude of egregious sex offenses. Of course, the premise

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of a Rule 60(b) motion is that some defect in the federal proceeding requires that the judgment in

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the federal proceeding be reexamined. However, petitioner alleges no defect in the federal

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proceeding per se, but blends his prosecutorial vindictiveness claim in state court proceedings

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with his allegation that any respondent in his habeas action is necessarily participating in a fraud

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on the court by merely appearing to defend the underlying conviction—a ground in Rule 60 best

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encompassed, if valid, by subsection 3 of Rule 60(b).

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All of petitioner’s Rule 60(b) motions are barely more than variations, if at all, on the

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same theme. The latest Rule 60(b) motion is barred by the principles of res judicata..

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Procedural History1

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The initial petition in this case was filed April 18, 1996, ECF No. 1. That petition was

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dismissed for failure to exhaust state remedies, judgment was entered on November 27, 1996,

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ECF No. 13, and petitioner appealed on December 20, 1996. On June 12, 1998 the Ninth Circuit

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Court of Appeal, recognizing by that time that state court exhaustion had transpired, vacated the

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judgment and remanded the matter to this district court, ECF No. 21.

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On June 15, 1998 petitioner filed an amended habeas petition, ECF No. 22. On February

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28, 2001 the district court again dismissed the case and judgment was entered. ECF Nos. 63, 65,

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66. On May 31, 2002 the Ninth Circuit Court of appeals affirmed the judgment. ECF No. 71.

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Petitioner’s first Motion for Relief from Judgment (filed October 23, 2006) was dismissed to the

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extent that it was a successive petition, and denied to the extent it is a Rule 60(b) motion. ECF

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Nos. 74, 77. Part of the motion involved the vindictive prosecution motion at issue in the latest

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filing.

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The second Rule 60(b) motion was filed on September 11, 2009. It too was denied. ECF

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Nos. 80, 82. This court declined to issue a certificate of appealability on March 5, 2010, ECF No.

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84, as did the Ninth Circuit on October 20, 2011. ECF No. 90.

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The third Rule 60(b) motion was filed on September 15, 2015. ECF No. 91. It was again
denied as a successive petition in the guise of a Rule 60(b) motion. ECF Nos. 98, 101.

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The fourth Rule 60 (b) motion, the one at bar, was filed on June 19, 2017. ECF No. 106.

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In this motion petitioner posits purportedly new information on a claim which has been argued in

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one way or another since the initial petition—that of vindictive prosecution. However, this claim

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has been adjudicated on several occasions and it is now time to say enough for this petition first

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filed in 1996 involving a conviction adjudged in 1989.

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This procedural history is truncated to avoid listing all 108 docket entries in this case and
limiting it to the petitioner’s repeated efforts to overturn his conviction.
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Discussion
The undersigned is well aware that the doctrine of res judicata2 generally does not apply to

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Rule 60 motions in that such a motion is regarded as simply a continuation of the case, not a new

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action. Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir. 1985). As is clear from the previous

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Findings and Recommendations regarding the previous Rule 60 motions, the issue in habeas

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corpus actions with respect to Rule 60 motions is usually whether they are simply successive

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petitions in the guise of a Rule 60 motion.

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However, the situation here does not involve a first Rule 60 motion; it involves seriatim
motions which show no signs of abating. In such a case, res judicata is a viable doctrine. See

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Brown v. Bureau of Reclamation, 2008 WL 4239006 *2 (D. Idaho 2008) and cases cited therein.

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Accordingly, petitioner’s fourth Rule 60 motion is barred by res judicata.

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Moreover, it is also time to enter an order to the Clerk prohibiting the filing of any further

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Rule 60 motions in this case. If petitioner has any further claims to make concerning his 1989

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conviction, he should petition the Ninth Circuit pursuant to 28 U.S.C. section 2244(a)(3)(A).

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Conclusion

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IT IS HEREBY ORDERED that petitioner’s motion for appointed counsel, ECF 107, is
denied.

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Accordingly, IT IS HEREBY RECOMMENDED:

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1. Petitioner’s Rule 60 motion filed at ECF No. 106 should be dismissed as barred by res

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judicata;

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2. The Clerk should be ordered to not accept any further filings in this action by

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petitioner.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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Res judicata prevents a party from bringing a new action for claims which were, or could have
been, raised in the initial action. Federated Dept. Stores v. Moitie, 452 U.S. 394, 398 (1981).
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“Objections to Magistrate Judge’s Findings and Recommendations.” The petitioner is advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 10, 2017

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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