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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