Ramirez v. Warden

Filing 173

Order by Hon. Ronald M. Whyte denying 169 Motion to Set Aside Judgment. (rmwlc2, COURT STAFF) (Filed on 9/30/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ANTHONY M. RAMIREZ,

Case No. 5:03-cv-01817-RMW

Petitioner,
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v.

ORDER DENYING MOTION TO SET
ASIDE JUDGMENT

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JAMES A. YATES, Warden,

Re: Dkt. No. 169

Respondent.
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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. After reviewing the briefs and the underlying record, the court

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concluded that petitioner was not entitled to relief based on the claims presented and denied the

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petition on October 21, 2014. Dkt. No. 158. On June 29, 2015, the U.S. Court of Appeals for the

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Ninth Circuit denied petitioner’s request for a certificate of appealability. Dkt. No. 167. Petitioner

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also filed a petition for certiorari with the U.S. Supreme Court. Dkt. No. 168. That petition was

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denied. Dkt. No. 171. On September 8, 2015, petitioner filed the current motion to set aside the

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judgment pursuant to Federal Rule of Civil Procedure 60(b). Dkt. No. 169. For the reasons set

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forth below, the motion to set aside the judgment is denied.

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I.

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ANALYSIS
Rule 60(b) provides for reconsideration where one or more of the following is shown: (1)
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mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that with

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reasonable diligence could not have been discovered before the court’s decision; (3) fraud by an

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opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; or (6) any other

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reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255,

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1263 (9th Cir. 1993).

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Rule 60(b)(6) affords courts the discretion and power “to vacate judgments whenever such

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action is appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir.

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2009). In applying Rule 60(b)(6) to petitions for habeas corpus, the Ninth Circuit has considered

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the following factors to guide courts’ exercise of their discretion: (1) a showing of extraordinary
circumstances, such as a change in intervening law; (2) the petitioner’s exercise of diligence in

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Northern District of California

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pursuing the issue during federal habeas proceedings; (3) interest in finality; (4) delay between the

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finality of the judgment and the motion for Rule 60(b)(6) relief; (5) degree of connection between

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the extraordinary circumstance and the decision for which reconsideration is sought; and (6)

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comity. See Phelps, 569 F.3d at 1135.

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A.

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Petitioner’s main argument in the instant motion is that that alleged misconduct by his

Alleged Attorney Misconduct

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court-appointed attorney during habeas proceedings warrants relief under Rule 60(b), subdivisions

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(1), (3), and (6). Petitioner initially filed his federal habeas petition pro se. This court ruled that the

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petition was untimely and granted judgment in favor of respondents. Dkt. Nos. 48, 49. Petitioner

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appealed that decision, and this court appointed Maitreya Badami as petitioner’s appellate counsel.

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Dkt. No. 63. On July 10, 2009, the Ninth Circuit vacated and remanded this court’s initial

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judgment for determination of whether petitioner was entitled to equitable tolling during two

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specific periods. Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009). The Ninth Circuit’s

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mandate took effect on September 9, 2009. Dkt. No. 70.

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Petitioner asserts that on July 13, 2009, Ms. Badami wrote petitioner a letter indicating that

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the case had been remanded to the district court “for factual findings on equitable tolling as to two

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specific periods.” Dkt. No. 170 Ex. B (July 13, 2009 letter). In the letter, which the court assumes

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is authentic for purposes of this order, counsel requests that petitioner “complete a hand written

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declaration with whatever information you want before the court.” Counsel indicates that

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petitioner should “please send whatever documentation you think supports the finding in those two

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instances and I will do my best.” Id. It also states: “if you have a petition somewhere that actually

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sets out the merits of your claims, you should send it as well.” Id.
Petitioner asserts that Ms. Badami took no further action in this case. In response to an

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order from this court requesting supplemental evidence regarding equitable tolling, on July 21,

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2010, petitioner, proceeding pro se, submitted additional evidence in support of his claims. Dkt.

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No. 77. On August 6, 2010, petitioner himself filed a request for the withdrawal of Ms. Badami as

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counsel and the appointment of new counsel. Dkt. No. 80. On August 19, 2010, Ms. Badami filed

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Northern District of California

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a motion to withdraw as counsel accompanied by a declaration indicating that she left her previous

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practice in late 2009 and had “significant problems with the mail being forwarded.” Dkt. No. 81.

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The declaration states: “It was not my expectation that I would remain counsel of record for Mr.

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Ramirez in the District Court proceedings following remand. I was not a [CJA] panel member for

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District Court cases . . . .” Id. Ms. Badami indicated that she had “not received the documents filed

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and served by Respondent or the Court.” In orders dated August 23, 2010 and August 30, 2010,

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the court granted Ms. Badami’s motion to withdraw but did not appoint new counsel. Dkt. Nos.

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82, 85.

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After allowing petitioner’s attorney to withdraw and allowing him additional time to

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submit supplemental evidence on equitable tolling, Dkt. No. 85, this court decided that equitable

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tolling rendered petitioner’s habeas petition timely. Dkt. No. 120 at 8. The parties proceeded to

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submit materials on the merits of petitioner’s claims. After reviewing the briefs and the underlying

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record, the court concluded in a 28-page order that petitioner was not entitled to relief based on the

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claims presented and denied the petition on October 21, 2014. Dkt. No. 158.

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Petitioner now argues that because Ms. Badami “abandoned” him, he is entitled to relief

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from judgment. A federal habeas petitioner does not have a Sixth Amendment right to counsel and

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is ordinarily “bound by his attorney’s negligence.” Towery v. Ryan, 673 F.3d 933, 941 (9th Cir.

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2012). However, where an attorney “abandons his client without notice,” id., courts have found

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that a petitioner’s procedural default may be excusable, id. at 940 (citing Maples v. Thomas, 132

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S. Ct. 912 (2012)). To obtain relief for attorney abandonment under Rule 60(b), a litigant “must

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demonstrate both injury and circumstances beyond his control that prevented him from proceeding

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with the prosecution or defense of the action in a proper fashion.” Cmty. Dental Servs. v. Tani, 282

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F.3d 1164, 1168 (9th Cir. 2002). In a habeas case cited by petitioner, the Second Circuit ruled that

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“a Rule 60(b)(6) movant must show that his lawyer agreed to prosecute a habeas petitioner’s case,

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abandoned it, and consequently deprived the petitioner of any opportunity to be heard at all.”

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Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004).
In the instant case, petitioner’s allegations regarding his attorney’s conduct, if true, are

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troubling, but petitioner has not shown that his attorney’s withdrawal injured him or prevented

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him from proceeding with pursuit of his claims. Petitioner has submitted materials indicating that

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Ms. Badami agreed to represent petitioner in support of his equitable tolling claim, but it is unclear

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if the representation extended to other areas of this case. Plaintiff ultimately prevailed on the

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equitable tolling issue, notwithstanding the fact that this court granted his attorney’s motion to

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withdraw before ruling on the tolling issue. Additionally, the order granting the motion to

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withdraw gave petitioner more than adequate notice that once the court ruled on the equitable

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tolling issue and reached the merits of his claims, petitioner would need to either find a new

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attorney or prosecute his own claims. Plaintiff did not suffer a procedural default due to counsel’s

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“abandonment,” as was the case in Maples. Here, the court fully considered the merits of

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petitioner’s claims but ultimately ruled against him. Accordingly, petitioner’s motion for relief

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based on alleged attorney misconduct is denied.1
Petitioner’s Other Arguments

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B.

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The court has reviewed petitioner’s other arguments and finds them unpersuasive. First,

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petitioner has not shown that the fact that petitioner was purportedly “surprised” by some of this

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Plaintiff’s argument that his attorney’s alleged misconduct constituted “fraud” under Rule
60(b)(3) also misses the mark because that subdivision applies to fraud “by an opposing party.”
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court’s orders interfered with him pursuing his claims. Second, as he argued previously, petitioner

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argues that the undersigned judge’s rulings reflect bias that required recusal. This argument misses

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the mark because “judicial rulings alone almost never constitute a valid basis for a bias or

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partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also Dkt. No. 88 (order

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denying motion for recusal). Finally, petitioner argues that the time it took for this court to reach

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the merits of his habeas claims violated his due process rights. The court initially notes that this

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argument seems inconsistent with the multiple extensions of time petitioner has requested in this

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case. See, e.g., Dkt. Nos. 7, 14, 53, 84, 154. In any event, petitioner cites no authority, and the

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court is not aware of any authority, for the proposition that delay constitutes grounds for habeas

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relief under Rule 60.
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United States District Court
Northern District of California

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For the reasons set forth above, the motion to set aside judgment is DENIED.

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II.

CERTIFICATE OF APPEALABILITY
The federal rules governing habeas cases brought by state prisoners require a district court

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that issues a final order adverse to the petitioner to grant or deny a certificate of appealability

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(“COA”) in its ruling. See Rule 11(a), Rules Governing Section 2254 Cases in the United States

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District Courts (as amended to February 1, 2010). For the reasons set out in the discussion above,

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petitioner has not shown “that jurists of reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right [or] that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

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484 (2000). Accordingly, a COA is denied.

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IT IS SO ORDERED.
Dated: September 30, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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