Simonton v. Evans et al

Filing 38

ORDER Denying Petitioner's Motion For Relief From Judgment (Re Doc. 37 ). Signed by Judge John A. Houston on 4/29/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES ALLEN SIMONTON,
Petitioner,

v.
M. EVANS,

Respondent.

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Civil No. 07cv0431 JAH (NLS)
ORDER DENYING PETITIONER’S
MOTION FOR RELIEF FROM
JUDGMENT [Doc. No. 37]

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Pending before the Court is Petitioner’s motion for relief from judgment pursuant

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to Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) permits relief from a

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judgment or an order for: (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

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to move for a new trial . . .; (3) fraud . . . misrepresentation, or other misconduct by an

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adverse party; (4) a void judgment; (5) satisfaction, release, or discharge of the judgment;

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or (6) “any other reason justifying relief from the operation of the judgment.” Fed. R. Civ.

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P. 60(b). Rule 60(b)(6) “has been used sparingly as an equitable remedy to prevent

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injustice. The rule is to be utilized only where extraordinary circumstances prevented a

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party from taking timely action to prevent or correct an erroneous judgment.” United

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States v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir. 1993), cert. denied,

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114 S. Ct. 60 (1993).

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Rule 60(b) applies to habeas corpus actions “only to the extent that it is not

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inconsistent with applicable federal statutory provisions and rules.” Gonzalez v. Crosby,

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545 U.S. 524, 530 (2005) (internal quotes omitted). It may not be used to circumvent

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AEPA’s rules for filing successive petitions. id. at 531. A Rule 60(b) motion that advances

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one or more claims is similar to a habeas petition that requires compliance with the

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applicable statutes. Id. Petitioner seeks reconsideration of the order denying his petition

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for writ of habeas corpus and denying his motion for a certificate of appealability. He

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maintains the Court erred when it failed to order an evidentiary hearing of his ineffective

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assistance of counsel claim, failed to rule on his motion to disallow Respondent’s motion

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to dismiss as untimely and failed to issue a certificate of appealability. Petitioner’s motion

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attacks a defect in the habeas proceedings and does not assert claims. See id. at 532.

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Therefore, the motion is not the equivalent of a successive petition.

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However, the Court finds Petitioner’s motion is untimely. A motion for relief from

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judgment or order based upon mistake, newly discovered evidence and fraud must be

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brought within a year after the entry of judgment or order, and a motion brought for all

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other reasons must be filed “within a reasonable time.” FED.R.CIV.P. 60(c)(1). The

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pending motion was filed more than two years after the November 10, 2008 order denying

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the petition for writ of habeas corpus and the February 23, 2009 order denying

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Petitioner’s request for a certificate of appealability. Recognizing his motion is untimely,

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Petitioner asks, without cite to authority, the Court to determine the time for filing his

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motion should run from the Ninth Circuit Court of Appeal’s order denying Petitioner’s

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certificate of appealability. There is no authority or support for Petitioner’s suggestion

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that the Court ignore the plain language of Rule 60(c)(1) that requires the time run from

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“the entry of the judgment or order or the date of the proceeding.” Accordingly, the

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motion for relief for judgment is denied as untimely.

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Even if the motion was timely, Petitioner fails to raise sufficient grounds for relief.

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Petitioner contends the Court erred in failing to grant an evidentiary hearing as to his

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claims for ineffective assistance of counsel. However, as Judge Napolean A. Jones, Jr.

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found in the order denying the petition, Petitioner failed to show counsel’s failure to

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object to erroneous instructions, refusal to give another instruction, and refusal to
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interview or call a witness was deficient and that he was prejudiced by counsel’s deficient

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performance. See Strickland v. Washington, 466 U.S. 668 (1984) (holding that a finding

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of ineffective assistance of counsel requires both a showing of deficient performance and

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prejudice as a result of the deficient performance). As such, Petitioner’s allegations of

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ineffective assistance of counsel if proven true would not have entitled him to habeas relief

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and he was not entitled to an evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465,

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474 (2007).

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Petitioner also asserts the Court erred in failing to address his motion to deny
Respondent’s answer as an untimely motion to dismiss.

A review of the docket

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demonstrates Magistrate Judge Leo S. Papas specifically addressed Petitioner’s motion,

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determined Respondent did not file a motion to dismiss but filed a timely answer and

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denied Petitioner’s motion. See Minute Order (Doc. No. 13).

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Finally, Petitioner asserts the order denying his request for a certificate of

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appealability is in error because there was no finding of “no showing of a denial of a right.”

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Motion at 6. A certificate of appealability is authorized “if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

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meet this threshold showing, a petitioner must show that: (1) the issues are debatable

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among jurists of reason, (2) that a court could resolve the issues in a different manner, or

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(3) that the questions are adequate to deserve encouragement to proceed further.

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Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel,

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529 U.S. 473 (2000) & Barefoot v. Estelle, 463 U.S. 880 (1983)). In the order denying

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Petitioner’s request for a certificate of appealability, Judge Jones specifically found

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Petitioner failed to establish the issues presented by his claims are debatable among jurists

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of reason and therefore, found Petitioner failed to make a showing of denial of a

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constitutional right. Accordingly, Petitioner fails to demonstrate he is entitled relief from

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judgment.

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Based on the foregoing, IT IS HEREBY ORDERED Petitioner’s motion for relief

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from judgment is DENIED.

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DATED: April 29, 2011

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JOHN A. HOUSTON
United States District Judge

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