Sciosciole v. Gower
Filing
61
ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/14/17 DENYING 45 motion to reopen habeas action. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
EDWARD FRANCIS SCIOSCIOLE,
12
No. 2:13-cv-2438 CKD P
Petitioner,
13
v.
14
GOWER,
15
ORDER
Respondent.
16
Petitioner is a California prisoner proceeding pro se. Both parties have consented to have
17
18
all proceedings in this matter before a United States Magistrate Judge. See 28 U.S.C. § 636(c).
19
On August 5, 2016, petitioner’s petition for a writ of habeas corpus was denied. Petitioner
20
appealed. On March 30, 2017, his appeal was dismissed because the Ninth Circuit found that
21
petitioner’s notice of appeal was filed late.
Shortly before the Ninth Circuit dismissed, petitioner filed a “motion to reopen habeas
22
23
action” in this court. ECF No. 45. Respondent has filed an opposition to the motion and
24
petitioner has filed a reply.
In his motion, petitioner asserts that in the decision denying his petition for writ of habeas
25
26
corpus, the court did not address petitioner’s claims that his trial counsel was ineffective for
27
failing to request a competency hearing and failing to present a “mental state defense.”
28
/////
1
1
In his petition, petitioner specifically identifies two claims:
2
1. “Denial Of Hearing On Mental Competency To Stand Trial In The Face Of Conflicting
3
Evidence;” and
2. “Denial Of Effective Assistance Of Counsel.”
4
5
Claim 2 concerns trial counsel’s advice as to whether it was appropriate for petitioner to contest
6
whether he had sustained certain prior convictions.
7
While petitioner does not specifically identify trial counsel’s ineffectiveness for failing to
8
request a competency hearing or counsel’s failure to present a “mental state defense” as claims
9
for relief in his habeas petition, he does suggest in the body of his argument in support of his first
10
claim that his counsel had knowledge prior to trial that plaintiff had mental issues. See ECF No.
11
1 at 9, 11, 68-69, 74.
12
Even if the court were to find that petitioner sufficiently presented to this court the claims
13
he says he did, the court’s decision not to specifically address these issues in its order denying
14
petitioner’s habeas petition is not sufficient grounds for re-opening this action pursuant to Rule
15
60(b) of the Federal Rules of Civil Procedure which permits the court to grant relief from
16
judgment under certain circumstances. As noted by respondent, a court implicitly rejects an
17
argument by not addressing it, see Clemons v. Mississippi, 494 U.S. 738, 747 n. 3 (1990), and the
18
appropriate method for challenging the denial of any of the issues raised in his appeal was by way
19
of appeal to the Ninth Circuit.
20
Furthermore, as noted by respondent, the Supreme Court has found that to the extent a
21
Rule 60(b) motion advances a habeas corpus claim, whether new or previously denied, rather than
22
a present a “defect in the integrity of the federal habeas proceedings,” the motion is actually a
23
successive habeas petition under 28 U.S.C. § 2244(b) upon which petitioner cannot proceed
24
without first obtaining authorization from the Ninth Circuit. Gonzalez v. Crosby, 545 U.S. 524,
25
532 (2005). Petitioner has not obtained authorization.
In light of the foregoing, petitioner’s “motion to reopen habeas action” will be denied and
26
27
the court need not reach respondent’s argument that the motion is not timely.
28
/////
2
1
Accordingly, IT IS HEREBY ORDERED that petitioner’s March 20, 2017 “motion to
2
reopen habeas action” is denied.
3
Dated: November 14, 2017
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
4
5
6
7
8
1
scio2438.mfr
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?