McGiboney v. Yordy

Filing 50

MEMORANDUM DECISION AND ORDER DENYING POST-APPEAL MOTIONS. IT IS ORDERED Petitioner's Motions for an Indicative Ruling and for Relief from Judgment (Dkts. 46 & 47 ) are DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOSHUA LEE McGIBONEY,
Case No. 1:16-cv-00150-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER DENYING POST-APPEAL
MOTIONS

v.
KEITH YORDY, Warden of the Idaho
State Correctional Institution,
Respondent.

On March 26, 2019, this Court entered final judgment dismissing Petitioner’s
habeas corpus claims as procedurally defaulted. See Dkt. 37. The Court held that
Petitioner had not met his extraordinarily high burden of establishing actual innocence to
excuse the default, under the holding of Schlup v. Delo, 513 U.S. 298 (1995). See Dkt.
36. This case is currently on appeal.
On October 16, 2020, Petitioner filed two motions: first, a Motion for an
Indicative Ruling, under Rule 62.1 of the Federal Rules of Civil Procedure; second, a
Motion for Relief from Judgment, under Rule 60(b)(6) of the Federal Rules of Civil
Procedure. See Dkts. 46, 47. The Court incorporates the facts and legal standards set forth
in its March 26, 2019 Memorandum Decision and Order. For the reasons that follow, the
Court will deny Petitioner’s post-appeal motions.

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1.

Standards of Law
An appeal divests the district court of jurisdiction. However, Rule 62.1 allows a

district court to undertake one of three actions if a timely motion is filed while an appeal
is pending. The Court has authority to “(1) defer considering the motion; (2) deny the
motion; or (3) state either that it would grant the motion if the court of appeals remands
for that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1.
Even so, Rule 60(b)(6) is used only “sparingly as an equitable remedy to prevent
manifest injustice.” Lal v. California, 610 F.3d 518, 524 (internal quotation marks
omitted). To be entitled to relief from judgment under Rule 60(b)(6), a party must “show
‘extraordinary circumstances’ justifying the reopening of a final judgment.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005). Relevant here, the Supreme Court has said that
“[s]uch circumstances will rarely occur in the habeas context.” Id.
A Rule 60(b) motion may not be used in a habeas case (1) to present newlydiscovered evidence on the merits, (2) to add a new claim for relief that was not included
in the petition, (3) to “attack[] the resolution of a claim on the merits,” or (4) to “vacate
the judgment because of a subsequent change in substantive law.” Rishor v. Ferguson,
822 F.3d 482, 491 (9th Cir. 2016). Such motions are deemed successive petitions subject
to the restrictions of 28 U.S.C. § 2244(b). However, a party may use a Rule 60(b) motion
to argue “that a previous ruling which precluded a merits determination was in error: for
example, a denial for such reasons as failure to exhaust, procedural default, or statute-oflimitations bar.” Gonzalez, 545 U.S. at 532 n.4. Petitioner’s motion is of the latter type—

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he asks that the Court reconsider its decision on procedural default—and, therefore, is not
subject to the successive petitions bar.
2.

The Court Will Deny the Post-Appeal Motions Because Petitioner Has Not
Shown Extraordinary Circumstances Justifying Relief from Judgment under
Rule 60(b)(6)
Petitioner brings forward two types of evidence that, though not “new,” he

discovered after the Court entered judgment in this case. He contends that this evidence
proves that he is actually innocent, permitting the Court to consider the merits of his
habeas claims.
First, Petitioner puts forward a scientific report from DNA Experts LLC, stating
that Petitioner could be excluded as the contributor of DNA on one of the unused rounds
recovered at the scene, which was Exhibit 61B. This report contradicts the earlier
scientific report Petitioner submitted, from Bode Cellmark Forensics, which concluded
there was insufficient DNA for testing. This newly presented report may set up a
disagreement between Petitioner’s experts, but it does not present extraordinary
circumstances justifying setting aside the Court’s final judgment. Moreover, the lack of
Petitioner’s DNA on an unused round does not “fundamentally call into question the
reliability of [Petitioner’s] conviction,” Sistrunk v. Armenakis, 292 F.3d 669, 677 (9th
Cir. 2002), particularly when considering that the new report does not conclusively
determine that DNA on the unused bullet was from Lowe or Bergerson—the robbery
victims, who Petitioner claimed were the aggressors.
Second, Petitioner presents a series of audio recordings and transcripts of police
interviews with witnesses in the immediate aftermath of the crimes. These recordings
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were available at the time of Petitioner’s trial. Petitioner’s trial counsel received them in
discovery, but they were not used at trial. See Dkts. 48-1 and 48-2. The information in the
recordings is largely cumulative of the witnesses’ testimony at trial and, with one
exception, warrants no further discussion.
The exception pertains to one recording which contains relevant impeachment
evidence of more than de minimis value. In an early interview with police, witness
Nicholas Anderson, a neighbor who later positively identified Petitioner as the shooter,
stated that he would “probably not” be able to identify the shooter.
Anderson’s in-court identification of Petitioner is one of the pieces of evidence
that led the Court to conclude that, more likely than not, a reasonable juror still could find
Petitioner guilty beyond a reasonable doubt. Anderson was cross-examined on his
identification at trial. See Dkt. 36 at 17–18 (“Anderson did not know Lowe or Bergerson
other than by sight, and he had no reason to lie about what he saw. Petitioner argues that
Anderson’s identification is unreliable, but the potential weaknesses in that identification
were already exposed at trial. Anderson was a distance away from Petitioner at the time
and it was fairly dark, but Petitioner’s trial counsel cross-examined Anderson on these
points. Hence, the jury knew of the possible problems with the identification and
presumably considered them when evaluating Anderson’s testimony.”). Anderson’s
previous statement to police, however, could have provided an additional reason why a
juror might doubt the accuracy of the in-court identification.
Nonetheless, the recordings do not rise to the level of extraordinary circumstances
for purposes of Rule 60(b)(6). Even if one disregarded Anderson’s identification entirely,
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there remains the testimony of Michael Roberts and Officer Richmond, who encountered
Petitioner after the incident. Petitioner—who claimed at trial that he had just been
attacked out of the blue by Lowe and Bergerson—did not seek aid from Roberts or
Richmond and, in fact, actively evaded or attempted to evade them.
Further, Anderson knew the faces of his neighbors. If Petitioner’s version of
events were true, and it was actually Lowe who drew and fired the gun, Anderson
certainly would have been able to identify Lowe as the shooter. He did not.
Also, Anderson’s identification was not the only evidence of Petitioner’s guilt, not
by far. The jury was able to gauge Petitioner’s credibility, was well as that of Lowe,
Bergerson, and the other witnesses. The jury decided that Petitioner’s story did not ring
true. Against that scrim of trial evidence, the recordings and transcripts simply do not
constitute the kind of “dramatic new evidence of innocence” that satisfies the exacting
Schlup standard, when considered in light of all the evidence. Larsen v. Soto, 742 F.3d
1083, 1096 (9th Cir. 2013).
Finally, although evidence need not be newly discovered for purposes of a Schlup
gateway claim, but only “newly presented,” Griffin v. Johnson, 350 F.3d 956, 963 (9th
Cir. 2003), we are now in a Rule 60(b)(6) world. Petitioner must show the type of
extraordinary circumstances that warrant upsetting a final judgment. In Hamilton v.
Newland, 374 F.3d 822 (9th Cir. 2004), the Ninth Circuit considered a scenario similar to
Petitioner’s. In that case, the petitioner’s habeas claims were held to be barred by the
statute of limitations. Id. at 824. The petitioner filed a Rule 60(b) motion asserting actual

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innocence, with supporting evidence, to support an argument to excuse the untimely
filing.
The Ninth Circuit held that the petitioner had not shown extraordinary
circumstances for Rule 60(b) purposes. Although the newly presented evidence was not
available at the time of the petitioner’s state court trial, it was available when the
petitioner first sought federal habeas relief. Id. at 825. Hence, the petitioner’s attempt to
introduce the evidence came too late, because even though the delay might have been
“attributable to inattention or inexperience[,] … neither deficiency constitutes an
‘extraordinary circumstance’ that justifies Rule 60(b) relief.” Id.
Here, as in Hamilton, the evidence contained in the recordings was available at the
time Petitioner filed his federal petition. More than that, the prosecution disclosed the
recordings in discovery, and trial counsel received them, so they were available at the
time of trial. The Court acknowledges that neither Petitioner himself nor his habeas
counsel obtained the recordings until recently. Nonetheless, the Court must apply the
steep climb imposed by the requirement of extraordinary circumstances. The evidence
put forward by Petitioner does not reach the summit of extraordinary circumstances
warranting Rule 60(b) relief. This is particularly so given that Petitioner has not
established, by a preponderance of the evidence, that in considering all the evidence,
including the recording of Anderson’s initial interview, every reasonable juror would be
compelled to find reasonable doubt. See Schlup, 513 U.S. at 327.
Therefore, the Court will deny Petitioner’s Motion for an Indicative Ruling and
Motion for Relief from Judgment.
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ORDER
IT IS ORDERED:
1.

Petitioner’s Motions for an Indicative Ruling and for Relief from Judgment
(Dkts. 46 & 47) are DENIED.

2.

The Court finds that its resolution of the instant motions is not reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c).

DATED: April 9, 2021
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

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