Elizares v. Taylor

Filing 5

ORDER DENYING, IN PART, AND DISMISSING, IN PART, PETITIONER CALVIN D. ELIZARES' FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF NO. 1 ) - Signed by JUDGE HELEN GILLMOR o n 10/28/2016. "Petitioner Calvin D. Elizares' FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF No. 1) is DENIED. To the extent Petitioner's Motion (ECF No. 1) is a second or successive Section 2254 habeas petition, the Motion is DISMISSED." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Calvin D. Elizares shall be served by first class mail at the address of record on October 31, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CALVIN D. ELIZARES
Petitioner,
vs.
JOSEPH TAYLOR,
Respondent.

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Civil No. 16-00580 HG-RLP

ORDER DENYING, IN PART, AND DISMISSING, IN PART, PETITIONER
CALVIN D. ELIZARES’ FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b)
MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF
No. 1)
Petitioner Calvin D. Elizares has filed a Motion that seeks
review of the Court’s July 12, 2007 Order Adopting the Amended
Findings and Recommendation of the Magistrate Judge to Deny
Petitioner’s Habeas Corpus Motion filed pursuant to 28 U.S.C. §
2254 in Civ. No. 06-00465 HG-BMK.
Petitioner’s FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b)
MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF
No. 64) is DENIED, IN PART, AND DISMISSED, IN PART.
BACKGROUND/PROCEDURAL HISTORY
HAWAII STATE COURT PROCEEDINGS
On April 24, 2000, a jury returned a verdict in Hawaii state
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court, finding Petitioner Calvin D. Elizares guilty of:
(1)

one count of Attempted Murder in the First Degree in
violation of Haw. Rev. Stat. § 705–500;

(2)

two counts of Kidnaping in violation of Haw. Rev. Stat.
§ 707–720(1)(d) and/or (e);

(3)

two counts of Terroristic Threatening in the First
Degree by Use of a Firearm in violation of Haw. Rev.
Stat. § 707–716(1)(d);

(4)

one count of Carrying or Use of a Firearm in the
Commission of a Separate Felony in violation of Haw.
Rev. Stat. § 134-6(a);

(5)

one count of Terroristic Threatening in the First
Degree in violation of Haw. Rev. Stat. § 707–716(1)(d);

(6)

two counts of being a Felon in Possession of a Firearm
in violation of Haw. Rev. Stat. § 134–7(b); and

(7)

one count of Extortion in the First Degree in violation
of Haw. Rev. Stat. § 707–765(1)(b).

State v. Elizares, 54 P.3d 946, (Haw. Ct. App. 2002).
On June 28, 2000, Petitioner was sentenced to life
imprisonment without parole as to the conviction for Attempted
Murder and received sentences from 5 years to 20 years
imprisonment for the remaining convictions.

(State Court

Judgment, attached as Ex. W to Resp. Answer, ECF No. 15-26, Civ.
No. 06-00465 HG-BMK).
On September 13, 2002, the Hawaii Intermediate Court of
Appeals affirmed Petitioner’s convictions and the Hawaii Supreme
Court subsequently dismissed his application for writ of
certiorari.

State v. Elizares, 54 P.3d 946 (Haw. App. 2002).

On October 19, 2004, the Hawaii Circuit Court denied
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Petitioner’s Rule 40 Petition seeking post-conviction relief, and
was affirmed on appeal.

(Amended Findings and Recommendation in

Civ. No. 06-00465 HG-BMK at pp. 7-10, ECF No. 26).
SECTION 2254 PETITION FILED IN FEDERAL DISTRICT COURT
Following the proceedings in Hawaii State Courts, on August
28, 2006, Petitioner filed a Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2254 with this Court in Civ. No. 06-00465 HG-BMK.
(ECF No. 1).
On July 12, 2007, the District Court issued an Order
Adopting the Magistrate Judge’s Amended Findings and
Recommendation, as Supplemented and Modified, to Deny the
Petition for Writ of Habeas Corpus.

(ECF No. 33).

PROCEEDINGS BEFORE THE FEDERAL APPEALS COURTS
On March 24, 2009, the Ninth Circuit Court of Appeals issued
an Order affirming the District Court’s denial of his Section
2254 Habeas Petition.

(ECF No. 41).

On July 17, 2009, the Ninth Circuit Court of Appeals issued
an Order denying a petition for panel rehearing.

(ECF No. 43).

On November 2, 2009, the United States Supreme Court denied
the petition for a writ of certiorari.

(ECF No. 46).

More than six years later, on January 20, 2016, and February
12, 2016, the Ninth Circuit Court of Appeals dismissed additional

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appeals filed by Petitioner as duplicative.

(ECF Nos. 49, 55).

On July 1, 2016, the Ninth Circuit Court of Appeals denied
Petitioner’s motion for reconsideration.

(ECF No. 63).

PETITIONER’S RULE 60(b) MOTION
On July 15, 2016, Petitioner filed FEDERAL RULES OF CIVIL
PROCEDURE RULE 60(b): MOTION FOR RELIEF FROM A FINAL JUDGMENT,
ORDER, OR PROCEEDING, filed in Civ. No. 16-00580 HG-RLP.

(ECF

No. 1).
On August 17, 2016, Peter A. Hanano, Deputy Prosecuting
Attorney, County of Maui, State of Hawaii, filed RESPONDENTS’
RESPONSE.

(ECF No. 3).

On September 19, 2016, Petitioner filed his REPLY.

(ECF No.

4).
STANDARD OF REVIEW

Federal Rule of Civil Procedure 60(b) provides relief from a
judgment or order on the following grounds:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(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);

(3)

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

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or
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discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
Rule 60(b) applies in Section 2254 habeas corpus proceedings
to the extent that the rule is not inconsistent with applicable
federal statutory provisions and rules, including (“AEDPA”) the
Antiterrorism and Effective Death Penalty Act of 1996.
§ 2244(b).

28 U.S.C.

Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005).
ANALYSIS

I.

Timing
Federal Rule of Civil Procedure 60(c)(1) sets forth the

timing requirements for a motion filed pursuant to Rule 60(b).
Fed. R. Civ. P. 60(c)(1) provides, as follows:
A motion under Rule 60(b) must be made within a
reasonable time—and for reasons (1), (2), and (3) no
more than a year after the entry of the judgment or
order or the date of the proceeding.
It is not entirely clear from Petitioner’s Motion under
which section of Rule 60(b) he has filed his Motion.

Rule

60(b)(4) provides relief from a judgment on the basis that it is
void.

Petitioner’s Motion specifically cites Rule 60(b)(4) but

makes a number of arguments that are beyond the scope of his
argument that the District Court’s prior judgment is void.
(Motion at pp. 4-5, ECF No. 1).

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It appears that Petitioner has filed his Motion pursuant to
both Rule 60(b)(4) and Rule 60(b)(6), which allows for a motion
based on “any other reason that justifies relief.”

Fed. R. Civ.

P. 60(b)(6).
A.

Timing for a Motion Brought Pursuant to Rule 60(b)(4)

A Motion to set aside a judgment as void under Fed. R. Civ.
P. 60(b)(4) may be brought at any time.

Million (Far East) Ltd.

v. Lincoln Provisions Inc. USA, 581 Fed. Appx. 679, 682 (9th Cir.
2014) (citing Meadows v. Dominican Republic, 817 F.2d 517, 521
(9th Cir. 1987)).
Petitioner’s Motion (ECF No. 1) is timely to the extent it
seeks to void the District Court’s July 12, 2007 order and
judgment filed in 06-cv-00465 HG-BMK pursuant to Fed. R. Civ. P.
60(b)(4).
B.

Timing for a Motion Brought Pursuant to Rule 60(b)(6)

A party seeking relief from a judgment pursuant to Rule
60(b)(6) must demonstrate that the motion was filed “within a
reasonable time” after the entry of judgment.

Fed. R. Civ. P.

60(c)(1).
A reasonable time depends on the facts of each case, taking
into consideration the interest in finality, the reason for
delay, the practical ability of the litigant to learn earlier of

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the grounds relied upon, and prejudice to other parties.

Lemoge

v. United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009).
Petitioner’s Motion (ECF No. 1) is not timely to the extent
it was filed pursuant to Rule 60(b)(6).
The District Court entered its Order and Judgment on July
12, 2007.

(Civ. No. 06-00465 HG-BMK, ECF No. 34).

More than

nine years later, on July 15, 2016, Petitioner filed his Rule
60(b) Motion.

Petitioner has not provided a justification for a

nine year delay in filing his Motion.

Kingdom v. Lamerque, 392

Fed. Appx. 520, 521 (9th Cir. 2010); Adams v. Hedgpeth, 2014 WL
1795162, *2 (C.D. Cal. Apr. 8, 2014).
II.

Motion Filed Pursuant to Rule 60(b)(4)
The district court may relieve a party from a final

judgment, order, or proceeding if the judgment is void.

Fed. R.

Civ. P. 60(b)(4).
A judgment is void only if the court that rendered it lacked
subject matter jurisdiction, lacked jurisdiction over the
parties, or if the court acted in a manner inconsistent with due
process that deprived a party of notice or the opportunity to be
heard.

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

270 (2010).
erroneous.

A judgment is not void merely because it is
United States v. Berke, 170 F.3d 882, 883 (9th Cir.

1999).

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Petitioner’s 60(b)(4) Motion makes two arguments.

First,

Petitioner argues that the District Court lacked jurisdiction
over his Section 2254 Petition because it was a “mixed petition.”
Second, Petitioner asserts that the court acted in a manner
inconsistent with due process.
A.

The Court Had Jurisdiction to Rule on Petitioner
Elizares’ Section 2254 Petition

Petitioner alleges that the Court’s July 12, 2007 Order that
denied his Section 2254 Petition should have been dismissed as a
“mixed petition.”

Petitioner is incorrect.

The District Court had jurisdiction to consider the Section
2254 Petition.

Petitioner Elizares’ Section 2254 Petition

contained seven claims, all of which were exhausted.

The Court

ruled that Ground One was “actually exhausted” and Grounds Two
through Seven were “technically exhausted.”

(July 12, 2007 Order

at p. 8, Civ. No. 06-00465 HG-BMK, ECF No. 33).

A Section 2254

petition containing claims that were either actually or
technically exhausted is not subject to dismissal as a mixed
petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

Mena v.

Long, 813 F.3d 907, 910 (9th Cir. 2016); Souliotes v. Hedgpeth,
2012 WL 3205433, *6 (E.D. Cal. Aug. 2, 2012); White v. Ryan, 2010
WL 1416054, at *12 (D. Ariz. March 16, 2010).
The District Court had jurisdiction to issue its July 12,
2007 Order and Judgment.

Petitioner’s Motion seeking to void the
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judgment for lack of jurisdiction is DENIED.
B.

Petitioner Was Afforded with Due Process of Law

The United States Supreme Court has held that a Rule
60(b)(4) Motion strikes a balance between the need for finality
of judgments and the importance of ensuring that litigants have a
full and fair opportunity to litigate a dispute.

United Student

Aid Funds, Inc., 559 U.S. at 271.
A Rule 60(b)(4) Motion may be brought on the basis that the
litigant was deprived of due process and an opportunity to be
heard.

Id. at 270.

Due process of law requires notice

reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and to afford
them an opportunity to present their objections.

Id. at 272.

A review of the record establishes that Petitioner received
actual notice of the habeas corpus proceeding and was afforded
the opportunity to present his objections.

Petitioner actively

participated in presenting his case before the Magistrate Judge
and the District Court.

In addition to filing his 2254 Petition,

Petitioner Elizares filed a Reply and Exhibits in support of his
claims as well as Objections to the Magistrate Judge’s Findings
and Recommendation.

(ECF Nos. 9, 21, 24, 27 in Civ. No. 06-00465

HG-BMK).
Petitioner was not entitled to an evidentiary hearing.
Federal review of habeas corpus claims pursuant to Section
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2254(d) is “limited to the record that was before the state court
that adjudicated the claim on the merits.”

Hill v. Gibson, 2016

WL 3361814, *2 (E.D. Cal. June 16, 2016) (citing Cullen v.
Pinholster, 563 U.S. 170, 185 (2011)).
Petitioner was properly afforded with due process of law and
was not deprived of notice or the opportunity to be heard.
Petitioner’s Motion seeking to void the judgment for lack of due
process is DENIED.
III. Rule 60(b) Motion as a Second or Successive Habeas Petition
Petitioner’s Rule 60(b) Motion makes a number of arguments
to support a claim that he received ineffective assistance of
counsel in his state court trial and appellate proceedings.
These arguments are raised in addition to the Rule 60(b)(4)
arguments relating to the Court’s Order and Judgment being void.
The majority of the ineffective assistance of counsel
arguments raised in his Rule 60(b) Motion were addressed in the
District Court’s adjudication of his Section 2254 Petition.
Petitioner’s Motion also appears to raise new arguments based on
Martinez v. Ryan, 132 S. Ct. 1309 (2012).
A self-styled “Rule 60(b)” Motion that includes new claims
or merely attacks the federal court’s previous resolution of a
claim on the merits is in substance a successive habeas petition.
Gonzales, 545 U.S. at 532; Jones v. Ryan, 733 F.3d 825, 833 (9th

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Cir. 2013); United States v. Washington, 653 F.3d 1057, 1063 (9th
Cir. 2011).
Before a district court may entertain a successive Section
2254 petition, the applicant must move in the appropriate court
of appeals for an order authorizing its consideration.
§ 2244(b)(3).

28 U.S.C.

An application for a successive habeas petition

may not present a claim that had been presented in a previous
application.

28 U.S.C. § 2244(b)(1).

Petitioner’s Rule 60(b) Motion contains portions that are
disguised as a second or successive habeas petition.

Petitioner

has not sought authorization to file a second or successive 22554
Petition.

To the extent Petitioner’s Motion is an unauthorized

second or successive 22554 Petition, the Motion is DISMISSED.
Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (per curiam);
Armstead v. Sinclair, 2013 WL 6038944, *1-*2 (W.D. Wash. Nov. 13,
2013) (citing United States v. Buenrostro, 638 F.3d 720, 723 (9th
Cir. 2013)).

CONCLUSION

Petitioner Calvin D. Elizares’ FEDERAL RULES OF CIVIL
PROCEDURE RULE 60(b) MOTION FOR RELIEF FROM A FINAL JUDGMENT,
ORDER OR PROCEEDING (ECF No. 1) is DENIED.
To the extent Petitioner’s Motion (ECF No. 1) is a second or

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successive Section 2254 habeas petition, the Motion is DISMISSED.
IT IS SO ORDERED.
DATED: October 28, 2016, Honolulu, Hawaii.

___________________________________
Helen Gillmor
United States District Judge

Calvin D. Elizares v. Joseph Taylor; Civil No. 16-00580 HG-RLP;
ORDER DENYING, IN PART, AND DISMISSING, IN PART, PETITIONER
CALVIN D. ELIZARES’ FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b)
MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF
No. 1)
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