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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD FRANCIS SCIOSCIOLE,

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No. 2:13-cv-2438 CKD P

Petitioner,

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v.

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GOWER,

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ORDER

Respondent.

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Petitioner is a California prisoner proceeding pro se. Both parties have consented to have

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all proceedings in this matter before a United States Magistrate Judge. See 28 U.S.C. § 636(c).

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On August 5, 2016, petitioner’s petition for a writ of habeas corpus was denied. Petitioner

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appealed. On March 30, 2017, his appeal was dismissed because the Ninth Circuit found that

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petitioner’s notice of appeal was filed late.
Shortly before the Ninth Circuit dismissed, petitioner filed a “motion to reopen habeas

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action” in this court. ECF No. 45. Respondent has filed an opposition to the motion and

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petitioner has filed a reply.
In his motion, petitioner asserts that in the decision denying his petition for writ of habeas

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corpus, the court did not address petitioner’s claims that his trial counsel was ineffective for

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failing to request a competency hearing and failing to present a “mental state defense.”

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In his petition, petitioner specifically identifies two claims:

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1. “Denial Of Hearing On Mental Competency To Stand Trial In The Face Of Conflicting

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Evidence;” and
2. “Denial Of Effective Assistance Of Counsel.”

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Claim 2 concerns trial counsel’s advice as to whether it was appropriate for petitioner to contest

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whether he had sustained certain prior convictions.

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While petitioner does not specifically identify trial counsel’s ineffectiveness for failing to

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request a competency hearing or counsel’s failure to present a “mental state defense” as claims

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for relief in his habeas petition, he does suggest in the body of his argument in support of his first

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claim that his counsel had knowledge prior to trial that plaintiff had mental issues. See ECF No.

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1 at 9, 11, 68-69, 74.

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Even if the court were to find that petitioner sufficiently presented to this court the claims

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he says he did, the court’s decision not to specifically address these issues in its order denying

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petitioner’s habeas petition is not sufficient grounds for re-opening this action pursuant to Rule

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60(b) of the Federal Rules of Civil Procedure which permits the court to grant relief from

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judgment under certain circumstances. As noted by respondent, a court implicitly rejects an

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argument by not addressing it, see Clemons v. Mississippi, 494 U.S. 738, 747 n. 3 (1990), and the

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appropriate method for challenging the denial of any of the issues raised in his appeal was by way

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of appeal to the Ninth Circuit.

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Furthermore, as noted by respondent, the Supreme Court has found that to the extent a

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Rule 60(b) motion advances a habeas corpus claim, whether new or previously denied, rather than

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a present a “defect in the integrity of the federal habeas proceedings,” the motion is actually a

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successive habeas petition under 28 U.S.C. § 2244(b) upon which petitioner cannot proceed

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without first obtaining authorization from the Ninth Circuit. Gonzalez v. Crosby, 545 U.S. 524,

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532 (2005). Petitioner has not obtained authorization.
In light of the foregoing, petitioner’s “motion to reopen habeas action” will be denied and

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the court need not reach respondent’s argument that the motion is not timely.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s March 20, 2017 “motion to

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reopen habeas action” is denied.

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Dated: November 14, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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scio2438.mfr

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