Williams v. Mayberg et al

Filing 73


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 MICHAEL B. WILLIAMS, Petitioner, 10 United States District Court Northern District of California 11 12 13 Case No. 03-cv-05147-MMC v. STEPHEN W. MAYBERG, et al., Respondent. ORDER DENYING PETITIONER’S THIRD MOTION FOR RECONSIDERATION; DENYING MOTION FOR APPOINTMENT OF COUNSEL Re: Doc. Nos. 71, 72 14 15 On November 21, 2003, petitioner, a civil detainee confined at Atascadero State 16 Hospital pursuant to California Welfare and Institutions Code § 6602, filed the above- 17 titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 18 1991 state court conviction. On November 8, 2004, respondent’s motion to dismiss the 19 petition as untimely was granted, judgment was entered in respondent’s favor, and the 20 case was closed. This Court and the Ninth Circuit Court of Appeals thereafter denied 21 petitioner’s request for a certificate of appealability. 22 Subsequently, petitioner filed in district court, a motion for reconsideration 23 pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, which was denied on April 24 27, 2007, after which ruling petitioner filed a request for a certificate of appealability, 25 which was denied by both this Court and the Court of Appeals. 26 Petitioner next filed a second motion for reconsideration pursuant to Rule 60(b), 27 which motion was denied on August 3, 2010, after which both this Court and the Court of 28 Appeals again denied petitioner’s request for a certificate of appealability. 1 Now pending before the Court is petitioner’s third motion for reconsideration of the 2 Court's 2004 order dismissing the petition as untimely. The instant motion was filed 3 October 6, 2017, and seeks relief pursuant to Rule 60(d)(1). 4 Petitioner’s reliance on Rule 60(d)(1) is misplaced. Rule 60(d)(1) provides that 5 Rule 60 "does not limit a court’s power to . . . entertain an independent action to relieve a 6 party from a judgment, order, or proceeding.” Fed. R. Civ. P. 60(d)(1). Petitioner, 7 however, does not seek to file an independent action; rather he seeks relief from a prior 8 order issued in the same action he filed almost fourteen years ago. 9 Moreover, to the extent petitioner may be seeking leave to file an independent action, it would be a second or successive petition pursuant to 28 U.S.C. § 2244(b)(2), 11 United States District Court Northern District of California 10 and the Ninth Circuit has denied petitioner’s request to file a second or successive 12 petition. (See Doc. No. 57 (Order of USCA, filed Aug. 11, 2010).) To the extent 13 petitioner may be seeking relief pursuant to Rule 60(b), he has not, as previously 14 discussed by the Court in ruling on the prior motions for reconsideration, presented a 15 basis for reconsideration of the dismissal. (See Order Den. Mot. for Recons., filed Apr. 16 27, 2007, at 2:11-3:5; Order Den. Pet'r's Second Mot. for Recons., filed Aug. 3, 2010, at 17 2:23-3:4.) 18 In connection with his motion for reconsideration, petitioner also has filed a motion 19 for appointment of counsel. The Sixth Amendment right to counsel does not apply in 20 habeas actions, see Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986), but, 21 pursuant to statute, a district court is authorized to appoint counsel to represent a habeas 22 petitioner whenever “the court determines that the interests of justice so require," see 18 23 U.S.C. § 3006A(a)(2)(B), and such person is "financially unable to obtain adequate 24 representation,” see id. § 3006A(a). Here, petitioner’s claims have been adequately 25 presented in the petition and in his recent filings, and there is nothing before the Court to 26 suggest the interests of justice otherwise require the appointment of counsel. 27 28 Accordingly, petitioner's third motion for reconsideration and motion for appointment of counsel are, in each instance, hereby DENIED. 2 1 Lastly, as petitioner has not shown “that jurists of reason would find it debatable" 2 whether the Court was correct in its ruling, see Slack v. McDaniel, 529 U.S. 473, 484 3 (2000), a certificate of appealability is hereby DENIED. 4 5 IT IS SO ORDERED. Dated: October 24, 2017 6 MAXINE M. CHESNEY United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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