Ralls v. United States District Court

Filing 17

ORDER DENYING Motion for Relief from Judgment re 16 Request filed by DeMarcus Ralls. Signed by Judge Charles R. Breyer on 6t/28/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 7/2/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DEMARCUS RALLS, F-46438,
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Petitioner,
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vs.
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ANTHONY HEDGPETH, Warden,
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Respondent.
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No. C 10-4732 CRB (PR)
ORDER DENYING
MOTION FOR RELIEF
FROM JUDGMENT
(Docket #16)

On March 14, 2012, the court denied on the merits petitioner's application

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for a writ of habeas corpus under 28 U.S.C. § 2254 and denied a certificate of

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appealability (COA) under 28 U.S.C. § 2253. Petitioner's application raised three

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claims for relief – the trial court erred in giving jury instruction CALCRIM No.

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220, the trial court erred in giving jury instructions CALCRIM Nos. 400 and 401,

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and the trial court erred in determining petitioner's sentence.

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More than a year and three months later, petitioner filed a motion for relief

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from judgment under Federal Rule of Civil Procedure Rule 60(b).1 He claims

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that his appellate counsel "relinquished his duties of representing [him]," and that

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the court "never informed [him] that [he] had to file a Traverse." Docket #16 at

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1. Petitioner's motion (docket #16) is DENIED.

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Petitioner also invokes subsection (d)(2) of Rule 60. But that subsection,
which clarifies that Rule 60 does not limit a court's power to grant relief to a
defendant who was not personally notified of the action, is inapplicable to him.

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To the extent that petitioner's Rule 60(b) motion seeks to raise a new claim

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of ineffective assistance of appellate counsel, it must be treated as a second or

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successive petition and subjected to the requirements of 28 U.S.C. § 2244(b).

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See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see also Allen v. Ornoski,

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435 F.3d 946, 957 (9th Cir. 2006) (in most cases, Rule 60(b) motion should be

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treated as successive habeas petition if factual predicate for motion also states

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claim for a successive petition under 28 U.S.C. § 2244(b)). Under section

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2244(b), a second or successive petition may not be filed in this court unless

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petitioner first obtains from the United States Court of Appeals for the Ninth

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Circuit an order authorizing this court to consider the petition. See 28 U.S.C. §

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2244(b)(3)(A). Petitioner has not obtained such an order from the Ninth Circuit.
And to the extend that petitioner's Rule 60(b) motion seeks relief from

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judgment on the ground that he was not informed that he had to file a traverse,

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the motion is untimely, see Fed. R. Civ. P. 60(c)(1), and without merit, see Fed.

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R. Civ. P. 60(b). The court made clear in its February 17, 2011 order to show

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cause that, "[i]f petitioner wishes to respond to the answer, he shall do so by

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filing a traverse with the court and serving it on respondent within 30 days of his

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receipt of the answer." Docket #5 at 3. And contrary to petitioner's suggestion,

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his failure to file a traverse did not result in the denial of his petition for a writ of

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habeas corpus and/or a COA. The petition and COA were denied for lack of

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merit.

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SO ORDERED.

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DATED: June 28, 2013

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CHARLES R. BREYER
United States District Judge

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