Boston v. Roe et al

Filing 51

ORDER Granting Petitioner's 49 Motion to File a Reply Memorandum and Denying without prejudice Petitioner's 46 Motion for Relief From Final Judgment. No Certificate of Appeal shall issue as no good grounds therefore are presented. Signed by Judge Philip M. Pro on 2/10/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANDRE D. BOSTON,
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Petitioner,

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vs.
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ROE, et al.,

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Respondents.
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2:95-cv-00254-PMP-CWH
ORDER

Nearly twenty years ago, Petitioner Andre Boston filed a Petition for

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Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254 (Doc. #2 filed March 24, 1995).

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On July 21, 1997, this Court entered an Order (Doc. #29) dismissing Petitioner

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Boston’s Petition for Habeas Relief, and granting Respondents’ Motion to Dismiss

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(Doc. #30).

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On August 21, 1997, Petitioner Andre Boston filed a timely Notice of
Appeal and Appellate relief was thereafter denied.
On June 6, 2012, Petitioner Boston filed a Motion for Relief from Final

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Judgment Pursuant to Rule 60(b) of the Fed. R. Civ. P., or in the Alternative

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Construction of Motion as a Writ of Mandamus (Doc. #40). On July 3, 2012, this

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Court entered an Order (Doc. #43) denying Petitioner Boston’s Motion (Doc. #43).

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Currently before the Court is a Second Motion for Relief from Final
Judgment (Doc. #46) filed January 16, 2014 on behalf of Petitioner Andre Boston.

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That motion is now fully briefed, and again for the reasons set forth in Respondents’

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Opposition, the Court finds that Petitioner Boston’s Motion for Relief (Doc. #46)

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must be denied.

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Specifically, Rule 60(b) of the Federal Rules of Civil Procedure requires

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that the Petitioner show “extraordinary circumstances justifying the reopening of a

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final judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Additionally, for

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relief under Rule 60(b)(6), Petitioner must demonstrate that the request for relief

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was “made within a reasonable time.” Here, Petitioner Boston has failed to show

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that either extraordinary circumstances justify reopening of the Final Judgment

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entered in 1997, nor that the delay in bringing his motions for relief was reasonable.

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IT IS THEREFORE ORDERED that Petitioner Boston’s Motion to File

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A Reply Memorandum (Doc. #49) is GRANTED.
IT IS FURTHER ORDERED that Petitioner Andre Boston’s Motion for
Relief From Final Judgment (Doc. #46) is hereby DENIED with Prejudice.
IT IS FURTHER ORDERED that no Certificate of Appeal shall issue as

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no good grounds therefore are presented.

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DATED: February 10, 2014.

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PHILIP M. PRO
United States District Judge

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