Rouser v. Pliler, et al

Filing 33

ORDER signed by Senior Judge William B. Shubb on 6/26/2014 DENYING 27 Petitioner's Motion pursuant to FRCP 60(b)(6); and Petitioner's 30 Motion for appointment of counsel is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM ROUSER,

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Petitioner,

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No. 2:02-cv-2378 WBS DAD P

v.

ORDER

CHERYL K. PLILER et al.,

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Respondents.

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Petitioner is a state prisoner proceeding pro se with a habeas corpus action filed pursuant

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to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for relief under Federal Rule

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of Civil Procedure 60(b)(6).
PROCEDURAL HISTORY

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In 2002, petitioner filed a petition for a writ of habeas corpus challenging his conviction

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for possession of a controlled substance by an inmate. On June 3, 2003, the assigned Magistrate

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Judge issued findings and recommendations, recommending that respondent’s motion to dismiss

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the petition as time-barred under the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

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be granted. On July 14, 2003, the undersigned adopted those findings and recommendations in

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full, granted the respondents’ motion, and dismissed this habeas action with prejudice. Petitioner

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appealed, and on September 23, 2004, the Ninth Circuit Court of Appeals affirmed the judgment.

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Now, more than ten years later, petitioner has filed the pending Rule 60(b)(6) motion, which

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respondent has opposed.

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DISCUSSION

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Under Rule 12 of the Rules Governing Section 2254 Cases, district courts may apply the

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Federal Rules of Civil Procedure provided they are not inconsistent with the Rules Governing

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Section 2254 Cases or any statutory provisions. Rule 60(b) of the Federal Rules of Civil

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Procedure provides that:

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On motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied . . .; or (6)
any other reason that justifies relief.

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

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In his pending motion, petitioner claims that he is entitled to relief under Rule 60(b)(6)

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because the court erred when it determined that he was not eligible for a later commencement

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date of the AEDPA statute of limitations under 28 U.S.C. § 2244(d)(1)(B). Section

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2244(d)(1)(B) provides that AEDPA’s one-year statute of limitations period shall run from “the

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date on which the impediment of filing an application created by State action in violation of the

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Constitution or laws of the United States is removed, if the applicant was prevented from filing by

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such State action.” 28 U.S.C. § 2244(d)(1)(B).

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In his findings and recommendations, the Magistrate Judge found that § 2244(d)(1)(B) did

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not apply in this case because petitioner had not shown that state action prevented him from filing

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a federal habeas petition. The Magistrate Judge explained that, although petitioner claimed that

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his cellmate was transferred, thereby preventing petitioner from discovering that his cellmate had

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pled guilty to disciplinary charges of possessing the drugs at issue in petitioner’s case, petitioner

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offered no evidence that prison officials had created an impediment to his filing of a timely

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federal habeas petition.

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In the pending motion, petitioner argues that the Magistrate Judge ignored petitioner’s

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argument that prison officials restrict correspondence between inmates and are especially

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restrictive of communication between gang affiliates housed in a security housing unit term.

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Even accepting all of this as true, however, petitioner still has not demonstrated that Magistrate

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Judge erred in finding that § 2244(d)(1)(B) is inapplicable to this case. A habeas petitioner is

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entitled to relief under § 2244(d)(1)(B) only if the alleged unlawful impediment “altogether

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prevented him from presenting his claims in any form, to any court.” Ramirez v. Yates, 571 F.3d

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993, 1001 (9th Cir. 2009). “[P]etitioner must show a causal connection between the unlawful

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impediment and his failure to file a timely habeas petition.” Bryant v. Arizona Atty. Gen., 499

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F.3d 1056, 1060 (9th Cir. 2007). Here, petitioner has once again made no showing of any

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unlawful state action that caused his failure to file a timely habeas corpus petition.

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Next, petitioner argues that he is entitled to relief under Rule 60(b)(6) in light of the

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United States Supreme Court’s decision in McQuiggin v. Perkins, ___U.S.___, 133 S. Ct. 1924

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(2013). In McQuiggin, the Supreme Court held that “actual innocence, if proved, serves as a

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gateway through which petitioner may pass whether the impediment is a procedural bar . . . or, as

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in this case, expiration of the statute of limitations.” Id. at 1928.

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As an initial matter, it is well established that relief under Rule 60(b)(6) requires a

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showing of “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). The

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Supreme Court has made clear that “not every interpretation of federal statutes setting forth the

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requirements for habeas provides cause for reopening cases long since final.” Id. In Gonzalez, a

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state prisoner filed a motion for relief from judgment dismissing his petition for writ of habeas

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corpus as time-barred in light of the Supreme Court’s decision in Artuz v. Bennett, 531 U.S. 4

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(2000) (holding that an application for state post-conviction relief may still be “properly filed”

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even if the state courts dismissed it as procedurally barred). In denying the petitioner’s motion

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for relief from judgment, the Court in Gonzalez explained that “[i]t is hardly extraordinary that

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subsequently, after petitioner’s case was no longer pending, this Court arrived at a different

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interpretation.” Id. at 536. Here, the court finds that the Supreme Court’s decision in McQuiggin

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does not constitute an extraordinary circumstance justifying the reopening of this long-ago closed

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case.

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Moreover, even if the recent decision in McQuiggin constituted an extraordinary

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circumstance for purposes of Rule 60(b)(6), petitioner has not shown that he is entitled to relief

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under that decision. The court observes that, although the Magistrate Judge did not previously

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have an opportunity to analyze petitioner’s “actual innocence” claim with the benefit of the recent

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decision in McQuiggin, the Magistrate Judge nonetheless analyzed petitioner’s “actual

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innocence” claim in determining whether the court could consider his otherwise-barred claims

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under the fundamental miscarriage of justice exception as explained in Schlup v. Delo, 513 U.S.

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298 (1995). Under both McQuiggin and Schlup, the actual innocence standard is the same in that

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it requires petitioner to demonstrate that it is more likely than not that no reasonable juror would

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have found him guilty of possession of drugs. Petitioner’s failure to meet this demanding

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standard once more is dispositive in this case. See McQuiggin, 133 S. Ct. at 1936. Although

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petitioner clearly disagrees with the court’s actual innocence analysis, petitioner still has not

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presented “evidence of innocence so strong that a court cannot have confidence in the outcome of

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the trial. . . . .” Id.

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For all of the foregoing reasons, petitioner is not entitled to relief under Rule 60(b)(6).
Accordingly, the court will deny his motion.

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OTHER MATTERS
Also pending before the court is petitioner’s motion for appointment of counsel. There

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currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v.

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Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the

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appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule

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8(c), Fed. R. Governing § 2254 Cases. In light of the discussion above, the court does not find

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that the interests of justice would be served by the appointment of counsel.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion pursuant to Federal Rule of Civil Procedure 60(b)(6) (Doc. No. 27)

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is denied; and
2. Petitioner’s motion for appointment of counsel (Doc. No. 30) is denied.
Dated: June 26, 2014

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/rous2378.60b

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