-RBB Shell v. Terhune, et al

Filing 48

ORDER Construing Rule 60(b) Motion as a Successive § 2254 Petition and Denying the 47 Motion. A certificate of applicability is Denied. Signed by Judge Barry Ted Moskowitz on 9/3/2014. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDWARD VICTOR SHELL,

No. 00-cv-1065-BTM-RBB

Petitioner,

v.

ORDER CONSTRUING RULE
60(b) MOTION AS A
SUCCESSIVE § 2254
PETITION AND DENYING THE
MOTION

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RICK HILL, as Warden,
Respondent.

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Petitioner’s petition for a writ of habeas corpus was denied on
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Circuit affirmed on September 19, 2002. (Doc. 30.) In an Order dated

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January 31, 2003, the Ninth Circuit granted Petitioner’s motion to file a late

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petition for rehearing, recalled the mandate, and denied Petitioner’s petition

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for panel rehearing and rehearing en banc. (Doc. 34.) The mandate was

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reissued and the appeal was closed. (Id.) About eight years later, on

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December 10, 2010, Petitioner filed a motion for relief from judgment

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pursuant to Rule 60(b)(6), which this Court construed as a successive

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habeas corpus petition and denied it on December 16, 2010. (Doc. 38.) On

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January 4, 2011, this Court denied petitioner’s request for a certificate of

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appealability. (Doc. 40.) On May 5, 2012, the Ninth Circuit also denied a

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certificate of appealability. (Doc. 42.) In June 2013, Petitioner again filed a
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request for a certificate of appealability with the Ninth Circuit (Doc. 43),

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which was denied as duplicative on September 9, 2013 (Doc. 45). On

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September 26, 2013, the Ninth Circuit denied Petitioner’s request for leave

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to file a successive § 2254 petition and further ordered, pursuant to 28

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U.S.C. § 2244(b)(3)(E), that “No petition for rehearing or motion for

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consideration shall be filed or entertained in this case.” (Doc. 46.)

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Petitioner has nonetheless filed another motion for relief pursuant to

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Rule 60(b)(6). (Doc. 47.) “Rule 60(b)(6) . . . permits reopening when the

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movant shows ‘any . . . reason justifying relief from the operation of the

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judgement’ other than the more specific circumstances set out in Rules

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60(b)(1)-(5).” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). A Rule 60(b)

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motion may not, however, be used to circumvent the rules for filing

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successive petitions. Id. at 531. Thus, the Supreme Court has held that a

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Rule 60(b) motion filed after the denial of a habeas corpus petition on the

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merits that seeks to add new grounds for relief is a successive petition under

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28 U.S.C. § 2254(b)(3). Id. Petitioner has not obtained the permission of the

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Court of Appeals to file a successive petition as required by 28 U.S.C. §

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2244. As stated in the December 16, 2010 and September 26, 2013 orders,

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the Court lacks jurisdiction to entertain Petitioner’s motion. The Court

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accordingly construes the motion as a successive § 2254 petition and

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DENIES the motion. A certificate of applicability is DENIED.

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IT IS SO ORDERED.
DATED: September 3, 2014
__________________________
Barry Ted Moskowitz
Chief United States District Judge

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