Brown v. Felker

Filing 70

ORDER signed by Chief Judge Morrison C. England, Jr. on 11/23/2015 DENYING 63 Motion for Reconsideration; DENYING 64 Motion to Appoint Counsel; INFORMING all parties that the Court will not issue any further orders in response to future filings. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BROWN, JR.,

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No. 2:06-cv-1086 MCE KJN (HC) (TEMP)

Petitioner,
v.

ORDER

T. FELKER,
Respondent.

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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 Reconsideration (ECF

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No. 63), which the Court construes as a motion for relief under Federal Rule of Civil Procedure

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60(b). Respondent has filed an opposition to the motion, and petitioner has filed a reply.

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PROCEDURAL HISTORY

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In 2006, Petitioner filed a petition for a writ of habeas corpus challenging his conviction

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for robbery and burglary. ECF No. 1. On July 15, 2008, the assigned Magistrate Judge issued

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Findings and Recommendations, recommending that Respondent’s motion to dismiss the petition

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

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ECF No. 48. On August 22, 2008, the assigned District Judge adopted those Findings and
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Recommendations in full, granted Respondent’s motion to dismiss, and closed this habeas action.

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ECF No. 52. Shortly thereafter, the assigned District Judge denied Petitioner’s request for a

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certificate of appealability. The Ninth Circuit Court of Appeals also denied petitioner’s request

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for a certificate of appealability. Now, more than six years later, petitioner has filed the pending

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Rule 60(b) motion in which he appears to challenge the constitutionality of AEDPA.

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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:

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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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Petitioner’s Rule 60(b) Motion is untimely. Insofar as Petitioner seeks relief under Rule

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60(b)(1), (2), or (3), his Motion is untimely; he should have filed his motion “no more than a year

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

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as Petitioner seeks relief under Rule 60(b)(4), (5), or (6), he should have filed his motion within

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“a reasonable time.” Id. Petitioner unduly delayed more than six years before filing the pending

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Motion and has offered no explanation to the Court for this delay. See Hammer v. Drago (In re

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Hammer), 940 F.2d 524, 526 (9th Cir. 1991) (finding unexcused two-year delay in filing of Rule

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60(b) motion was unreasonable). Accordingly, Petitioner’s Motion is DENIED as untimely.

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OTHER MATTERS

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Also pending before the court is Petitioner’s Motion for Appointment of Counsel. ECF

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No. 64. There currently exists no absolute right to appointment of counsel in habeas proceedings.

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

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authorizes the appointment of counsel at any stage of the case “if the interests of justice so

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require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In light of the discussion above, the

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Court does not find 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 Rule 60(b) (ECF No. 63) is DENIED;

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2. Petitioner’s Motion for Appointment of Counsel (ECF No. 64) is DENIED; and

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3. The Court will not issue any further orders in response to future filings.

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IT IS SO ORDERED.

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Dated: November 23, 2015

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