Ivey v. Parano et al

Filing 28

ORDER re: 27 Motion for Reconsideration Pursuant to Federal Rule of Civil Procedure 60(b). The Court construes Petitioner's Rule 60(b) motion as a second or successive § 2254 habeas petition. Because Petitioner has not obtained an order from the Ninth Circuit Court of Appeals authorizing him to file a second or successive petition, the Court lacks jurisdiction to hear Petitioner's claims. The Clerk of Court is instructed to send Petitioner a blank Ninth Circuit Application for Leave to File a Second or Successive Petition. This action remains closed. Signed by Judge Michael M. Anello on 8/30/2018. (All non-registered users served via U.S. Mail Service)(Blank form Application for Leave to File Second or Successive Petition mailed)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DWAYNE STANLEY IVEY, II,

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Case No.: 14cv715-MMA (JLB)
ORDER RE: MOTION FOR
RECONSIDERATION PURSUANT
TO FEDERAL RULE OF CIVIL
PROCEDURE 60(B)

Petitioner,
v.
DANIEL PARAMO, Warden,

[Doc. No. 27]

Respondent.

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Petitioner Dwayne Stanley Ivey, II (“Petitioner”), a state prisoner proceeding pro

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se, filed a Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 60(b).

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See Doc. No. 27. Petitioner requests the Court reopen his case “to consider new and

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different evidence demonstrative of his absolute innocence.” Id. at 1.

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Petitioner previously filed a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254, challenging the constitutionality of his conviction at trial for committing a

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lewd act upon a child under the age of fourteen (Cal. Penal Code § 288(a)); sexual

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intercourse with a child ten years of age or younger (Cal. Penal Code § 288.7(a));

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sodomy with a child ten years of age or younger (Cal. Penal Code § 288.7(a)); digital

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penetration of a child ten years of age or younger (Cal. Penal Code § 288.7(b)); oral

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copulation with a child ten years of age or younger (Cal. Penal Code § 288.7(b)); and

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found true the allegation that Petitioner engaged in substantial sexual conduct with a
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child under the age of fourteen (Cal. Penal Code §1203.066(a)(9)). See Doc. No. 1.

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Petitioner argued that he was denied his fundamental right to a fair trial due to a

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combination of prosecutorial misconduct and the admission of irrelevant and highly

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prejudicial evidence. See id. at 3-8.

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On December 16, 2016, the Court issued an order adopting Magistrate Judge

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Burkhardt’s Report and Recommendation denying the petition for writ of habeas corpus.

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See Doc. No. 22. The Court declined to issue a certificate of appealability, and Petitioner

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did not file an appeal. Petitioner filed the instant motion more than a year and a half later

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on August 17, 2018. See Doc. No. 27.

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LEGAL STANDARD
Rule 60(b) “allows a party to seek relief from a final judgment, and request

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reopening of his case, under a limited set of circumstances.” Gonzalez v. Crosby, 545

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U.S. 524, 528 (2005). “Habeas corpus petitioners cannot ‘utilize a Rule 60(b) motion to

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make an end-run around the requirements of AEDPA’ or to otherwise circumvent that

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statute’s restrictions on second or successive habeas corpus petitions.” Jones v. Ryan,

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733 F.3d 825, 833 (9th Cir. 2013) (quoting Calderon v. Thompson, 523 U.S. 538, 547

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(1998)); see also United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (per

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curiam) (“[A] state prisoner may not rely on Rule 60(b) to raise a new claim in federal

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habeas proceedings that would otherwise be barred as second or successive under §

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2254.”), cert. denied, 565 U.S. 919 (2011).

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AEDPA typically limits a petitioner to one federal habeas corpus motion and

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precludes second or successive habeas corpus petitions unless the petitioner meets certain

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requirements. See 28 U.S.C. § 2244(b). Section 2244(b)(2) provides that “[a] claim

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presented in a second or successive habeas corpus application under section 2254 that

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was not presented in a prior application shall be dismissed unless” the claim “relies on a

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new rule of constitutional law, made retroactive to cases on collateral review by the

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Supreme Court, that was previously unavailable” or on newly discovered facts that show

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a high probability of actual innocence. 28 U.S.C. § 2244(b)(2)(A)-(B). In order for a
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petitioner to bring a second or successive petition, he or she must move in the appropriate

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court of appeals for an order “authorizing the district court to consider the [second or

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successive petition.]” 28 U.S.C. § 2244(b)(3)(A).
“Because of the difficulty of meeting this standard, habeas corpus petitioners at

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times have characterized their second or successive habeas corpus petitions as Rule 60(b)

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motions.” Jones, 733 F.3d at 834. “[W]hen a Rule 60(b) motion is actually a disguised

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second or successive § 2254 motion, it must meet the criteria set forth in 28 U.S.C. §

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2244(b)(2).” Id. (internal quotation marks and citation omitted). There is no bright-line

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rule for distinguishing between a bona fide Rule 60(b) motion and a disguised second or

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successive § 2254 motion. See id. Rather, the Supreme Court in Gonzalez held that a

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legitimate Rule 60(b) motion “attacks . . . some defect in the integrity of the federal

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habeas proceedings,” while a second or successive habeas corpus petition “is a filing that

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contains one or more ‘claims’” defined as “asserted federal bas[e]s for relief from a state

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court’s judgment of conviction.” 545 U.S. at 532, 530. Stated differently, a motion that

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does not attack “the integrity of the proceedings, but in effect asks for a second chance to

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have the merits determined favorably” raises a claim that takes it outside of the Rule

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60(b) context and within the scope of AEDPA’s limitation on second or successive

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petitions. Id. at 532 n.5.

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For example, a proper Rule 60(b) motion includes one alleging fraud on the federal

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habeas corpus court, as well as those wherein the movant “asserts that a previous ruling

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which precluded a merits determination was in error” including for failure to exhaust, a

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procedural default, or a statute-of-limitations bar. Id. at 532 nn. 4-5. By contrast, Rule

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60(b) motions asserting claims that constitute, in effect, a new request for relief on the

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merits include motions to present “newly discovered evidence . . . in support of a claim

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previously denied” in addition to motions asserting that “a subsequent change in

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substantive law is a reason justifying relief . . . from the previous denial of a claim.” Id.

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at 531.

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14cv715-MMA (JLB)

DISCUSSION

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In his motion for reconsideration, Petitioner requests the Court reopen “his case to

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consider new and different evidence demonstrative of his absolute innocence.” Doc. No.

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27 at 1. Specifically, Petitioner contends that in October 2017, he discovered new

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evidence in the form of text messages from the alleged victim that purportedly reveal she

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fabricated her story. Petitioner asserts four reasons justify “relief from the final judgment

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in this case:” (1) his inability to understand complex legal standards involved in absolute

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innocence cases, (2) the lack of trained personnel within CDCR to assist him with

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preparing his case, (3) the sensitive nature of his case “which present a clear and present

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danger to his safety,” and (4) the newly discovered evidence “from the alleged victim that

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she made it all up.” Id. at 7. Petitioner claims “[i]t would be nothing short of a continued

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injustice if this new evidence was not fully explored.” Id. at 9.

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Here, Petitioner does not attack “some defect in the integrity of the federal habeas

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proceedings,” but rather Petitioner essentially “asks for a second chance to have the

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merits determined favorably[.]” Gonzalez, 545 U.S. at 532, 532 n.5. It appears that

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Petitioner seeks to introduce new evidence in support of his claims that were previously

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denied by the Court. For example, Petitioner states that “[t]his Court originally found

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Petitioner’s claim of prosecutorial misconduct to lack merit, in part because of the state

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court’s finding of overwhelming trial evidence.” Doc. No. 27 at 11. “Now, however,

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that very evidence in called into question because the State’s star witness—their only real

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piece of evidence—admits her entire story was fabricated.” Id. (emphasis in original).

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Additionally, Petitioner asserts that “[t]he remaining claims of constitutional violations

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are likewise now subject to further scrutiny because the very foundation upon which they

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rest has been torn asunder[.]” Id. The Supreme Court, however, has made clear that a

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Rule 60(b) motion seeking leave to present “newly discovered evidence” in support “of a

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claim previously denied” is “in substance a successive habeas petition and should be

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treated accordingly.” Id. at 531.

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Moreover, it is unclear whether Petitioner also seeks to rely on the actual
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innocence exception articulated in Schlup v. Delo, 513 U.S. 298 (1995), and assert a new

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claim that was not previously raised in his petition. See Doc. No. 27 at 9-10. In Schlup,

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the Supreme Court held that a claim of actual innocence serves as a gateway through

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which federal courts can consider the merits of certain procedurally defaulted habeas

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petitions asserting constitutional violations. 513 U.S. at 326-27. AEDPA provides an

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actual innocence exception to the bar on claims raised in second or successive petitions,

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see 28 U.S.C. § 2244(b)(2)(B), but this exception is narrower than the one set forth in

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Schlup. See McQuiggin v. Perkins, 569 U.S. 383, 396 (2013). The Ninth Circuit recently

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held that Schlup does not abrogate § 2244(b)(2)(B). Gage v. Chappell, 793 F.3d 1159,

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1169 (9th Cir. 2015). Thus, to the extent Petitioner asserts a claim of actual innocence

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based on newly discovered evidence, such a claim is in substance a second petition and

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must be authorized by the Ninth Circuit Court of Appeals before it may be reviewed by

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this Court. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even if a petitioner

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can demonstrate that he qualifies for [the § 2244(b)(2)(B)] exception[], he must seek

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authorization from the court of appeals before filing his new petition with the district

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court.”).

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There is no indication that Petitioner has obtained an order from the Ninth Circuit

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Court of Appeals authorizing this Court to consider a second or successive petition. See

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28 U.S.C. § 2244(b)(3)(A). Thus, the Court is without jurisdiction to consider the merits

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of Petitioner’s claims. See Burton v. Stewart, 549 U.S. 147, 149 (2007); United States v.

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Washington, 653 F.3d 1057, 1065 (9th Cir. 2011) (noting that because the petitioner has

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not sought a certificate authorizing him to file a second or successive petition, “the

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district court was without jurisdiction” to entertain the motion).

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CONCLUSION

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Based on the foregoing, the Court construes Petitioner’s Rule 60(b) motion as a

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second or successive § 2254 habeas petition. Because Petitioner has not obtained an

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order from the Ninth Circuit Court of Appeals authorizing him to file a second or

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successive petition, the Court lacks jurisdiction to hear Petitioner’s claims. The Clerk of

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Court is instructed to send Petitioner a blank Ninth Circuit Application for Leave to

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File a Second or Successive Petition. This action remains closed.

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IT IS SO ORDERED.
Dated: August 30, 2018

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