Stewart v. Green et al

Filing 34

ORDER denying 32 Rule 60 Motion. COA denied. Signed by Judge Dana L. Christensen on 8/7/2023. Transmitted electronically to prison for delivery to inmate. (TAG)

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
BENNY STEWART,

Cause No. CV 15-36-BU-DLC

Petitioner,
vs.
TOM GREEN, ATTORNEY GENERAL OF
THE STATE OF MONTANA,

ORDER

Respondent.

On August 9, 2016, Magistrate Judge Lynch entered Findings and
Recommendations advising the Court that Stewart’s petition for habeas corpus
relief, filed pursuant to 28 U.S.C. § 2254, should be denied for lack of merit. (Doc.
18.) On September 19, 2016, the Findings and Recommendations were adopted in
full. (Doc. 24.) Stewart’s petition was denied on the merits and a Certificate of
Appealability was also denied. (Id.) Stewart timely appealed. (Doc. 26.)
On March 20, 2017, the Ninth Circuit denied the request for a Certificate of
Appealability. (Doc. 28.) Stewart then filed a petition for a writ of certiorari with
the United States Supreme Court. (Doc. 29.) On October 5, 2017, Stewart’s
petition was denied, as was his subsequent petition for rehearing. (Docs. 30 & 31.)
1

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 2 of 6

On May 22, 2023, Stewart filed a motion for relief from judgment pursuant
to Federal Rule of Civil Procedure 60(b). (Doc 32). Stewart alleges that this Court
erred when it considered documents outside of the state court record, specifically
the Application for Search Warrant, Search Warrant, and Search Warrant return,
when resolving the corresponding claims in his Section 2254 petition. (Id. at 2-4.)
Stewart seems to allege that consideration of these documents violated his right to
due process and simultaneously undermined the public’s confidence in the judicial
process. (Id. at 3-4.)
Rule 60(b) provides relief from final judgment based on a mistake, newly
discovered evidence, fraud, a void judgment, a discharged judgment, or “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6). Reconsideration is “an
extraordinary remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.’” Kona Enters., Inc. v. Estate of Bishop, 229 F.
3d 877, 890 99th Cir. 2000)(quotation omitted). A motion for reconsideration
should not be granted “unless the district court is presented with newly discovered
evidence, committed clear error, or if there is an intervening change in the
controlling law.” 389 Orange St. Partners v. Arnold, 179 F. 3d 656, 665 (9th Cir.
1999). “Whether or not to grant reconsideration is committed to the sound
discretion of the court.” Navajo Nation v. Confederated Tribes and Bands of the
Yakama Indian Nation, 331 F. 3d 1041, 1046 (9th Cir. 2003).
2

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 3 of 6

Rule 60(b) provides relief from the judgment in several narrow
circumstances, including “mistake,” “newly discovered evidence,” or “any other
reason that justifies relief.” Fed. R. Civ P. 60(b)(1)(2), (6). Stewart seems to
allege that the Court’s consideration of the search warrant and associated
documents falls under subsection 6 of the statute and compromises “any other
reason that justifies relief.”
As a preliminary matter, this Court is authorized to consider and take
judicial notice of filings and orders entered in other courts. See Tigueros v. Adams,
658 F. 3d 983, 987 (9th Cir. 2011)( proceedings, including orders and filings in
other courts, including state courts, are the proper subject of judicial notice when
directly related to the case at issue). Because Stewart challenged the legality of the
search warrant issued in his case, it was appropriate for this Court to consider the
scope of the warrant.
As to the warrant issued regarding the search of his home and seizure of
computers and electronic devices, it was noted that under the doctrine of Stone v.
Powell, 428 U.S. 465, 494 (1976), Stewart could not challenge the legality of the
warrant via federal habeas corpus. (See Doc. 24 at 4-5.) This Court also observed
that even if preclusion under Stone v. Powell did not apply, Stewart’s claim was
without merit because the warrant stated with particularity all of the evidence that
was actually seized. Accordingly, the search did not go beyond the scope of the
3

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 4 of 6

warrant. (Id. at 5.) Under either analysis, Stewart was not entitled to relief and
this Court did not violate Stewart’s constitutional rights by reviewing the very
document he sought to challenge.
In relation to the second warrant, it was noted that there was no document in
the record before this Court that provided for a search of electronically stored data
within an electronic device. (Id. at 5-6.) But a review of corresponding documents
revealed that a second search warrant was sought and granted. Additionally,
Stewart filed a motion to continue his trial in order to receive the forensic analysis
of his electronics’ data. (Id. at 6)(citing Doc. 14-2.) Because Stewart consented to
the search of electronically stored data, he was unable to raise a challenge to the
same via a request for habeas relief.
In short, Stewart presents no evidence of mistake, newly discovered
evidence, or other grounds to support reconsideration of the Court’s prior Order.
Rather he seeks to rehash arguments he previously presented to the Court.
While Stewart clearly disagrees with this Court’s prior Order, that is not a
valid basis for reconsideration. Rule 60 does not provide a vehicle permitting
unsuccessful claims to be considered anew. Stewart has not demonstrated that he is
entitled to reconsideration, nor has he set forth facts or law of a strongly
convincing nature to compel reversal. See Decker Coal Co. V. Hartman, 706 F.
Supp. 745, 750 (D. Mont. 1988). The motion will be denied because Stewart
4

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 5 of 6

repeats arguments already made and has not provided one of the permissible
grounds to support his reconsideration request relative to his search warrant
challenge and/or due process claims. Maraziti v. Thorpe, 52 F. 3d 252, 255 (9th
Cir. 1995)(holding that a Rule 60(b) motion was properly denied because the
plaintiff merely reiterated the arguments he already presented).
Stewart does not present any newly discovered or previously unavailable
evidence, nor does he supply new facts. Stewart does not justify his request for
reconsideration by pointing to an intervening change in controlling law. Finally,
he has failed to demonstrate that the Court committed clear error in its prior ruling.
Accordingly, Stewart has failed to surmount the high standard for the Court to
amend its prior Order. The motion for relief from judgement will be denied.
This Court previously denied Stewart a Certificate of Appealability (COA).
(Doc. 24.) For the reasons set forth herein, the Court concludes that Stewart has
failed to make a showing, let alone a substantial showing, of the denial of his
constitutional rights. Accordingly, to the extent that Stewart seeks one, the Court
will not entertain a renewed request for a COA. If Stewart wishes to appeal, he
must file a notice of appeal within 30 days after entry of this Order and must seek a
COA from the Ninth Circuit Court of Appeals in accordance with Federal Rule of
Appellate Procedure 22(b)(2).
//
5

Case 2:15-cv-00036-DLC-JCL Document 34 Filed 08/07/23 Page 6 of 6

Accordingly, IT IS HEREBY ORDERED that Stewart’s Rule 60 Motion for
Relief (Doc. 32) is DENIED. To the extent one is sought, the request for a
Certificate of Appealability is also DENIED.
DATED this 7th day of August, 2023.
/s/ Dana L. Christensen
Dana L. Christensen
United States District Court Judge

6