Steward v. Sherman

Filing 74

ORDER by Judge William Alsup denying 71 Motion to Amend/Correct ; denying 71 Motion to Alter Judgment. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 2/7/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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DONNY STEWARD, a.k.a. HARRY
DARNELL HOWARD,

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ORDER DENYING MOTION TO
ALTER OR AMEND JUDGMENT

Petitioner,

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No. C 15-0667 WHA (PR)

v.

(Dkt. 71)

STUART SHERMAN,
Respondent.
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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254

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challenging his state court conviction. Respondent’s motion to dismiss the petition as untimely

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was granted on June 16, 2016. In the same order, a certificate of appealability was also denied.

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Petitioner did not file an appeal. On December 2, 2016, he filed a motion to “alter or amend the

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judgment” under Rule 60(b) of the Federal Rules of Civil Procedure (ECF No. 71). Petitioner

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indicates that he attempted to file the motion previously, but prison officials negligently failed

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to mail it. He requests that the motion be considered now. That request is granted.

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Although petitioner calls his motion a motion to “alter or amend” the judgment, he

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primarily seeks relief under Rule 60(b)(6). Rule 59(e) provides for altering or amending a

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judgment, and Rule 60(b) provides for “relief from judgment.” Rule 60(b)(6) provides for relief

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from judgment for “any reason” not otherwise provided in Rule 60(b). The other grounds for

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relief in Rule 60(b) consist of: (1) mistake, inadvertence, surprise or excusable neglect; (2)

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newly discovered evidence which by due diligence could not have been discovered in time to

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move for a new trial; (3) fraud by the adverse party; (4) the judgment is void; and (5) the

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judgment has been satisfied. Fed. R. Civ. P. 60(b). Rule 60(b)(6) is a “catchall provision” that

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“has been used sparingly as an equitable remedy to prevent manifest injustice and is to be

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utilized only where extraordinary circumstances prevented a party from taking timely action to

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prevent or correct an erroneous judgment.” United States v. Washington, 394 F.3d 1152, 1157

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(9th Cir. 2005) (internal quotations omitted). Thus, to reopen a case under Rule 60(b)(6), a

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party must establish “both injury and circumstances beyond his control that prevented him from

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proceeding in a proper fashion.” Ibid. (internal quotations omitted). Mere dissatisfaction with
the court's order or belief that the court is wrong in its decision are not adequate grounds for

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For the Northern District of California

United States District Court

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relief. Twentieth Century - Fox Film Corp., 637 F.2d at 1341.

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Petitioner argues that he is entitled to relief from judgment under 60(b)(6) because of

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violations of his constitutional rights at his criminal trial in state court, and he focuses in

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particular on his right to testify in his own defense and his right to the effective assistance of

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trial and appellate counsel. These arguments pertain to the constitutionality of his state court

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conviction, and indeed they are the basis of claims he makes in his petition. These arguments

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do not, however, pertain to the basis of the judgment in this case, which was the dismissal of his

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federal petition for being untimely under 28 U.S.C. 2244(d)(1). As a result, these arguments do

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not provide for any reason justifying relief from the judgment here under Rule 60(b)(6).

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Petitioner also states that his trial attorney caused a delay in filing an appeal in the

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California Court of Appeal of approximately three months, and that this shortened the

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limitations period for a federal habeas petition (ECF No. 71 at 13, 21, 23). However, under the

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statute governing the statute of limitations for federal habeas petitions (28 U.S.C.

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2244(d)(1)(A)), the limitations period does start until after all stages of state court direct review

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were completed, which in this case occurred when the California Supreme Court issued a

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remittitur. Therefore, any delay in filing petitioner’s appeal to the California Court of Appeal

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happened before the federal limitations began to run, and such a delay did not shorten or

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otherwise impact the amount of time petitioner had to file a federal habeas petition. This is
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therefore not grounds for relief from the judgment that the instant petition was not timely filed.
Petitioner also argues that he is entitled to equitable tolling of the limitations period

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because he diligently pursued his rights by firing both his trial and appellate counsel (ECF No.

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71 at 27). As noted, the limitations period did not begin to run until after petitioner’s direct

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appeals and the time for seeking such appeals ended. See 28 U.S.C. § 2244(d)(1)(A). Petitioner

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fired his attorneys during trial and during the pendency of his direct appeal, which means that

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both of these events occurred before the limitations period began to run. A limitations period

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that has not yet started cannot be tolled, equitably or otherwise. Petitioner also states that he

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filed two state habeas petitions in the state courts because appellate counsel did not raise the
claims plaintiff wanted (ECF No. 71 at 27-28). It was explained in the order of dismissal why

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For the Northern District of California

United States District Court

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these petitions — petitioner’s first and second state habeas petitions, filed during the pendency

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of the direct appeal and in August 2003, respectively — do not toll the limitations period so as

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to render the instant petition timely. These are also not grounds for relief from judgment under

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Rule 60(b).

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Petitioner asserts that he is entitled to relief from judgment because a petition should not

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be deemed untimely if the petition has merit, i.e. if the state court decision was contrary to or an

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unreasonable application of federal law under 28 U.S.C. 2254(d)(1) (ECF No. 71 at 33-34).

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The Antiterrorism and Effective Death Penalty Act imposed a one year statute of limitations on

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federal habeas petitions, which applies regardless of the merits of the claims raised in the

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petition. Petitioner seeks an exception to an otherwise untimely petition where the petitioner’s

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right to due process and to testify were violated during trial (id. at 35-36), but there is no such

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exception to the statute of limitations for federal habeas petitions. Accordingly, petitioner is not

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entitled to relief from judgment under Rule 60(b)(6).

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Petitioner also cites to Rule 60(d)(1), which provides that an “independent action” may

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be filed by a party seeking “relief from a judgment, order or proceeding.” Petitioner has not

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filed an independent action, i.e. a new case, and therefore this rule does not apply to the present

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motion. Petitioner also cites to Rule 59(e). “[A]ltering or amending a judgment [under Rule

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59(e)] is an ‘extraordinary remedy’ usually available only when (1) the court committed
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manifest errors of law or fact, (2) the court is presented with newly discovered or previously

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unavailable evidence, (3) the decision was manifestly unjust, or (4) there is an intervening

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change in the controlling law.” Rishor v. Ferguson, 822 F.3d 482, 491-92 (9th Cir. 2016).

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There has been no intervening change in the controlling law, no newly discovered evidence is

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presented, and, for the reasons described above, petitioner has not shown manifest errors of law

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or fact or that the dismissal of the petition as untimely was manifestly unjust.

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For the foregoing reasons, petitioner’s motion to “alter or amend” the judgment (ECF
No. 71) is DENIED.
IT IS SO ORDERED.

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For the Northern District of California

United States District Court

Dated: February
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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