Williams v. Walker et al

Filing 94

ORDER: (1) Denying Rule 60(b) Motion for Relief from Judgment (ECF No. 93 ), and (2) Declining to Issue a Certificate of Appealability. The Court Denies Petitioner's Rule 60(b) motion for relief from judgment. The denial is without prejudice t o Petitioner to file a second or successive petition in this Court if he obtains permission from the Ninth Circuit Court of Appeals. The Court Declines to issue a certificate of appealability with respect to the denial of Petitioners Rule 60(b) Motion. Signed by Judge Barry Ted Moskowitz on 4/5/2016. (All non-registered users served via U.S. Mail Service)(rlu) (sjt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BENNY WILLIAMS,
Petitioner,

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Civil No. 07cv0959-BTM (AJB)

vs.

(1) DENYING RULE 60(b)
MOTION FOR RELIEF FROM
JUDGMENT, and

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ORDER:

JEFF MACOMBER, Warden, et al.,
Respondents.

(2) DECLINING TO ISSUE A
CERTIFICATE OF
APPEALABILITY

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On November 19, 2009, this Court entered judgment denying Petitioner’s First

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Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and

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issuing a Certificate of Appealability. (ECF Nos. 70-71.) The First Amended Petition

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contained eight claims, six of which challenged the use of Petitioner’s two prior felony

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convictions (a 1978 California conviction for assault with a deadly weapon and a 1974

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Oregon conviction for robbery), to enhance his sentence under California’s Three Strikes

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law. (ECF No. 37 at 15-26, 29-34.) Petitioner appealed, and on December 8, 2011, the

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Ninth Circuit Court of Appeals affirmed this Court’s judgment. (ECF No. 90.) On

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August 27, 2013, the Ninth Circuit Court of Appeals denied Petitioner’s request for

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authorization to file a second or successive habeas petition, noting that all claims

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presented in his application had been presented in his prior habeas petition filed in this
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Court. (ECF No. 91.) On February 1, 2016, Petitioner filed the instant Motion for relief

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from judgment pursuant to Fed.R.Civ.P. 60(b), arguing that the prosecutor in his state

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criminal case “committed intrinsic and extrinsic fraud” by filing sentence enhancement

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allegations which erroneously alleged that his prior felony convictions constituted

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“strikes” under California’s Three Strikes law, and that the sentencing court abused its

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discretion and violated state law by using the prior convictions to enhance his sentence.

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(ECF No. 93.)

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I.

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Discussion
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from

judgment based on:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

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(6) any other reason that justifies relief.

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Petitioner has requested relief only under Rule 60(b)(3) and 60(b)(6) (see ECF No.

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93 at 2), and there appears to be no basis for relief from judgment under any other

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provision of Rule 60(b). Petitioner contends that relief is justified under Rule 60(b)(3)

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because the prosecutor in his state criminal proceedings “in representation of the state

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committed intrinsic or extrinsic [fraud], misrepresentation, and other misconduct when

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she used her prosecutorial powers to file sentence enhancement allegations alleging

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Petitioner’s prior felony conviction[s] were serious and violent felonies within the

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meaning of” California’s Three Strikes law, because they are not serious or violent

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felonies. (Id. at 4-5.) He argues that his prior California felony conviction for assault

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with a deadly weapon is not a serious or violent felony under California law, and should
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or

extrinsic),

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not have been alleged as such by the prosecutor or used to enhance his sentence. (Id. at

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7-9.) Petitioner also contends relief is justified under Rule 60(b)(6) because his prior

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Oregon felony conviction for robbery is not a serious or violent felony conviction within

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the meaning of California’s Three Strikes law, and it was an abuse of discretion for the

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trial court to use it to enhance his sentence. (Id. at 9-16.)

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This Court must first determine whether Petitioner’s Rule 60(b) motion is in effect

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a second or successive habeas petition. Gonzalez v. Crosby, 545 U.S. 524, 530-32

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(2005). A Rule 60(b) motion constitutes a second or successive habeas petition when

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it advances a new ground for relief or “attacks the federal court’s previous resolution of

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a claim on the merits.” Gonzalez, 545 U.S. at 532 (italics in original); id. at 532 n.4

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(explaining that “on the merits” in that context refers to an assertion that the court’s

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resolution of a previous claim was in error, as opposed to an argument, for example, that

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the court erred in ruling that a merits determination was not possible due to a procedural

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ground).

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If Petitioner’s Rule 60(b) motion is the equivalent of a second or successive

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petition, this Court lacks jurisdiction to consider the motion absent a certificate from the

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Ninth Circuit authorizing the filing of the petition. United States v. Washington, 653

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F.3d 1057, 1065 (9th Cir. 2011); 28 U.S.C. § 2244(b)(1). The Court must treat a Rule

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60(b) motion as a second or successive petition if it merely attempts to relitigate this

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Court’s determination on the merits of the claims. See Washington, 653 F.3d at 1063

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(providing as examples of a Rule 60(b) motion which must be treated as a successive

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petition a motion asserting that owing to “excusable neglect” the movant’s habeas

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petition had omitted a claim of constitutional error, a motion seeking to add a new

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ground for relief, and a motion attacking the court’s prior resolution of a claim on the

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merits), citing Gonzalez, 545 U.S. at 530-32.

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In this Court’s Order denying the First Amended Petition, the Court denied on the

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merits Petitioner’s claims that his federal Constitutional rights were violated by the

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enhancement of his current sentence with his prior California felony conviction for
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assault with a deadly weapon and his prior Oregon felony conviction for robbery. (ECF

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No. 70 at 11-14.) In affirming this Court’s judgment, the Ninth Circuit Court of Appeals

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also addressed and rejected those claims on their merits. (ECF No. 90 at 4-7.) In his

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instant Rule 60(b) Motion, Petitioner once again attempts to challenge the use of his

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prior convictions to enhance his sentence.

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It is clear that Petitioner’s Rule 60(b) Motion merely seeks to relitigate claims

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presented in the First Amended Petition which were denied on the merits by this Court

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and affirmed on appeal. This Court lacks jurisdiction to consider the Rule 60(b) motion

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because Petitioner has not received permission from the Ninth Circuit to file a second or

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successive petition in this Court. Gonzalez, 545 U.S. at 530-32; Washington, 653 F.3d

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at 1063.

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II.

Conclusion and Order

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The Court DENIES Petitioner’s Rule 60(b) motion for relief from judgment for

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the reasons set forth above. The denial is without prejudice to Petitioner to file a second

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or successive petition in this Court if he obtains permission from the Ninth Circuit Court

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of Appeals. The Court DECLINES to issue a certificate of appealability with respect

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to the denial of Petitioner’s Rule 60(b) Motion.

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IT IS SO ORDERED.
DATED: April 5, 2016

_________________________________________
HON. BARRY TED MOSKOWITZ
United States District Judge

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