Quillar v. People of the State, et al

Filing 92

ORDER Denying 91 Motion For Relief From Judgment. Signed by Judge Barry Ted Moskowitz on 1/3/12. (All non-registered users served via U.S. Mail Service)(ecs)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LEE V. QUILAR,

Case No. 01cv00968 BTM (BEN)
Petitioner,

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ORDER DENYING “MOTION FOR
RELIEF FROM JUDGMENT”

v.
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RICK M. HILL,

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Respondent.

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The Petitioner moves for relief from judgment pursuant to Federal Rule of Civil

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Procedure 60(b)(6). For the reasons stated herein, the Court DENIES the Petitioner’s

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motion.

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On May 29, 2003, the Court entered an order adopting the Magistrate Judge’s Report

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and Recommendation that Petitioner’s habeas corpus petition be denied. On October 12,

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2010, the Petitioner moved under Federal Rule of Civil Procedure 60(b)(6) for relief from the

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Court’s 2003 judgment, alleging new facts showing ineffective assistance of counsel during

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his criminal trial. On December 7, 2010, the Court construed the Petitioner’s Rule 60(b)(6)

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motion as a successive § 2254 habeas petition and dismissed it for lack of jurisdiction.

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On August 8, 2011, the Petitioner filed a second Rule 60(b) motion for relief from the

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Court’s May 29, 2003 order. (See Dkt. No. 91.) In his latest motion, the Petitioner argues

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that he suffered “fraud upon the court” due to falsification of minute orders by the trial judge

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during his criminal trial in 1996. He states that this Court has not addressed his fraud upon

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01cv00968 BTM (BEN)

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the court claims in any previous order. The Petitioner has not moved before the United

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States Court of Appeals for the Ninth Circuit for an order authorizing this Court to consider

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a successive habeas petition.

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As with the Petitioner’s previous Rule 60(b)(6) motion (Dkt. No. 83), the Court

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construes the Petitioner’s present motion as a successive § 2254 habeas petition. See

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United States v. Swisher, 790 F. Supp. 2d 1215, 1247 (D. Idaho 2011) (“[W]hen a Rule 60(b)

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motion seeks to add a new ground for relief or attacks the resolution on the merits of the

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underlying habeas decision, the motion to reconsider is effectively a second or successive

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habeas petition.”).

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The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2241 et seq., requires

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that “[b]efore a second or successive application permitted by this section is filed in the

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district court, the applicant shall move in the appropriate court of appeals for an order

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authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). The

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Petitioner has not moved before the appropriate court (the United States Court of Appeals

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for the Ninth Circuit) for an order authorizing him to file a successive habeas application.

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(See generally Lee Quillar v. The State of California, Case No. 10-57072 (9th Cir.).) For this

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reason, the Court lacks jurisdiction to consider this or any other additional Rule 60(b)(6)

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motions seeking relief from judgment. The Court therefore DISMISSES the Petitioner’s

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Motion For Relief From Judgment.

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DATED: January 3, 2012

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Honorable Barry Ted Moskowitz
United States District Judge

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01cv00968 BTM (BEN)