McCarthy v. Frauenheim
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. DENYING 53 MOTION FOR RECONSIDERATION OF DENIAL OF FED. R. CIV. P. 60(B) MOTION. (ndrS, COURT STAFF) (Filed on 7/27/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
Case 4:16-cv-06820-HSG Document 54 Filed 07/27/21 Page 1 of 2
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JAMES T MCCARTHY,
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Petitioner,
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v.
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CRAIG KOENIG,
ORDER DENYING MOTION FOR
RECONSIDERATION OF DENIAL OF
FED. R. CIV. P. 60(B) MOTION
Re: Dkt. No. 53
Respondent.
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United States District Court
Northern District of California
Case No. 16-cv-06820-HSG
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Petitioner, an inmate at Correctional Training Facility, filed this pro se action seeking a
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writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 13, 2020, the Court denied the
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petition for a writ of habeas corpus, and denied a certificate of appealability. Dkt. Nos. 45, 46.
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Petitioner appealed to the Ninth Circuit Court of Appeals and, on March 29, 2021, the Ninth
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Circuit denied his request for a certificate of appealability. Dkt. Nos. 47, 49. On April 20, 2021,
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the Ninth Circuit denied Petitioner’s request for reconsideration en banc. Dkt. No. 50. On May
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17, 2021, Petitioner filed a motion seeking relief from judgment pursuant to Fed. R. Civ. P. 60(b),
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alleging mistake by this court and fraud on the court, misrepresentation, and misconduct by the
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Alameda County District Attorney’s Office. Dkt. No. 51. On May 25, 2021, the Court denied
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Petitioner’s Fed. R. Civ. P. 60(b) in a reasoned order. Now pending before the Court is
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Petitioner’s motion to appeal the Court’s May 25, 2021 denial. Dkt. No. 53.1
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Petitioner appeals the Court’s May 25, 2021 denial on the grounds that the denial failed to
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consider the impact fraud had on the state court proceedings; incorrectly concluded that Petitioner
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A certificate of appealability likely is required for appeals from the denials of Rule 60(b) motions
for relief from judgment arising out of the denial of a habeas petition. United States v. Winkles,
795 F.3d 1134, 1142 (9th Cir. 2015). Although Winkles involves a § 2255 motion, it discussed
§ 2254 proceedings throughout.
Case 4:16-cv-06820-HSG Document 54 Filed 07/27/21 Page 2 of 2
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had not produced clear and convincing evidence of the fraud to justify relief; showed favoritism to
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the prosecution; incorrectly concluded that defense attorney provided effective counsel within the
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meaning of the Sixth Amendment; incorrectly concluded that the fraud claim was a re-statement of
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the prosecutorial misconduct claim; and incorrectly concluded that the prosecutorial misconduct
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claim was procedurally barred. Dkt. No. 53.
The essence of Petitioner’s fraud-related arguments is that the victim and the prosecution
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committed fraud on the court in the underlying state court proceedings. While the Court has the
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authority under Fed. R. Civ. P. 60(b)(3) to set aside a judgment for fraud on the court, this applies
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only where the fraud was not known at the time of settlement or entry of judgment. United States
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v. Sierra Pacific Indus., 862 F.3d 1157, 1168 (9th Cir. 2017). Here, the alleged fraud was known
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United States District Court
Northern District of California
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to Petitioner at trial, and Petitioner has repeatedly raised this argument in both state court
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proceedings and the instant action. Fed. R. Civ. P. 60(b)(3) is therefore inapplicable here.
The Court has considered and denied Petitioner’s claims of ineffective assistance of
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counsel in both the order denying the habeas petition and the order denying the request for
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reconsideration. The Court will not further address Petitioner’s ineffective assistance of counsel
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claims.
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Petitioner has raised variations of these arguments throughout this actions. In denying the
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petition for a writ of habeas corpus and the request for reconsideration, the Court carefully
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considered both the entire record and Petitioner’s arguments, and correctly applied the applicable
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governing law. The Court did not err in denying either the petition for a writ of habeas corpus or
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the request for reconsideration.
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This order terminates Dkt. No. 53.
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IT IS SO ORDERED.
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Dated: 7/27/2021
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
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