William Witter vs. E.K. McDaniel, et al.,

Filing 276

ORDER denying Petitioner's ECF No. 270 Motion for Relief from Judgment; denying a certificate of appealability; granting nunc pro tunc as of their respective filing dates ECF Nos. 272 , 274 Motions to Extend Time. Signed by Judge Robert C. Jones on 4/11/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM WITTER,
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Petitioner,
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vs.
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TIMOTHY FILSON,1 et al.,

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Respondents.
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2:01-CV-1034-RCJ-CWH
ORDER

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Petitioner Witter is a Nevada prisoner sentenced to death. On August 12, 2014, this court

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entered a final judgment denying Witter’s petition for writ of habeas corpus under 28 U.S.C. § 2254.

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ECF No. 248. Now before the court is Witter’s motion for relief from judgment pursuant to Rule

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60(b) of the Federal Rules of Civil Procedure. ECF No. 270. Witter argues that his death sentence

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is unconstitutional in light of the Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616

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(2016).

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In Hurst, the Court held that Florida's capital sentencing scheme violates the Sixth
Amendment right to a jury trial because, under the scheme, the jury renders an advisory verdict but

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Timothy Filson, current warden of Ely State Prison, is substituted as respondent in place
of his predecessor Renee Baker. See Fed. R. Civ. P. 25(d) (providing that a public “officer’s successor
is automatically substituted as a party” when his or her predecessor “ceases to hold office while the
action is pending”).

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the judge makes the ultimate sentencing determination. 136 S.Ct. at 624. In reaching that holding,

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the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which held that any fact necessary for

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the imposition of the death penalty must be found by a jury, not a judge. 536 U.S. at 589.

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Although a jury imposed the death penalty in Witter’s case, he claims that his death sentence

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is nonetheless unconstitutional under Hurst because the jury was not instructed that it must find

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beyond a reasonable doubt that there are no mitigating circumstances sufficient to outweigh the

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aggravating circumstances. Witter reasons that, if the weighing of aggravating and mitigating factors

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is an element that must be submitted to the jury as required by Hurst, it necessarily follows that the

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reasonable doubt standard imposed by the Fifth Amendment applies to the weighing process. Witter

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also argues his death sentence is unconstitutional under Hurst because the Nevada Supreme Court

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upheld his sentence despite striking three invalid aggravating circumstances. According to Witter,

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this was impermissible because Hurst allows only a jury determine the relative weight of aggravating

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and mitigating circumstances.

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Witter’s arguments notwithstanding, this court is without jurisdiction to rule upon a motion

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seeking relief from judgment while Witter’s case is on appeal to the Ninth Circuit. See Williams v.

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Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (concluding that district court lacked jurisdiction over

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petitioner’s Rule 60(b) motion filed subsequent to notice of appeal). When a case is on appeal, a

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party may only “ask the district court for an indication that it is willing to entertain a Rule 60(b)

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motion. If the district court gives such an indication, then the party should make a motion in the

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Court of Appeals for a limited remand to allow the district court to rule on the motion.” Sierra

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Pacific Industries v. Lyng, 866 F.2d 1099, 1113 n. 21 (9th Cir. 1989); see also, Gould v. Mutual Life

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Insurance Co., 790 F.2d 769, 772 (9th Cir. 1986).

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This practice has been adopted by the Federal Rules of Civil Procedure. Rule 62.1(a) states,

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“If a timely motion is made for relief that the court lacks authority to grant because of an appeal that

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has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the

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motion; or (3) state either that it would grant the motion if the court of appeals remands for that

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purpose or that the motion raises a substantial issue.” Cognizant of this procedure, Witter asks this

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court to enter a ruling under the third option, which is often referred to as an “indicative ruling.” See

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Fed. Ct. App. Manual § 15:12.5 (5th ed.).
Rule 60(b) applies to habeas proceedings, but only in conformity with AEDPA,2 including

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the limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez v. Crosby, 545

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U.S. 524, 529 (2005). If a Rule 60(b) motion seeks to add a new ground for relief or attack this

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court's previous resolution of a claim on the merits, it is, in substance, a successive habeas petition

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subject to the requirements of 28 U.S.C. § 2244(b). Id. at 531. If, however, the motion “attacks, not

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the substance of the federal court's resolution of a claim on the merits, but some defect in the

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integrity of the federal habeas proceedings,” the motion is not a successive habeas petition. Id. at

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532.

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Witter’s motion clearly falls in the former category. Accordingly, this court is not permitted

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to address the merits of Witter’s Hurst-based claim until Witter obtains authorization from the court

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of appeals pursuant to 28 U.S.C. § 2244(b)(3).

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Witter argues that his motion is not a successive petition because his appeal of this court’s

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final order is still pending. He does not, however, cite to any controlling authority for the

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proposition that the pendency of his appeal from the denial of his first habeas petition excuses him

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from obtaining permission from the court of appeals to raise his new claim. While a Second Circuit

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case arguably supports Witter’s position (Whab v. United States, 408 F.3d 116 (2nd Cir. 2005)),

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opposing cases from other circuits are more persuasive. See Ochoa v. Sirmons, 485 F.3d 538, 541

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(10th Cir. 2007) (holding that no controlling authority “suggests that whether a Rule 60(b) motion or

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other procedural vehicle may be used to circumvent § 2244(b) depends on the incidental fact that an

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appeal is or is not pending from the underlying habeas proceeding”) and Phillips v. United States,

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The Antiterrorism and Effective Death Penalty Act.

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668 F.3d 433, 435 (7th Cir. 2012) (“Nothing in the language of § 2244 or § 2255 suggests that

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time-and-number limits are irrelevant as long as a prisoner keeps his initial request alive through

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motions, appeals, and petitions.”).

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Witter also argues that, even if § 2244 does apply, he is still entitled to relief because §

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2244(b)(2)(A) permits him to pursue a claim that “relies on a new rule of constitutional law made

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retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

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That provisions does not, however, provide a basis for this court to issue an indicative ruling in

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Witter’s favor. Setting aside the absence of a decision from the Supreme Court making Hurst

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retroactive,3 the determination under § 2244(b)(2)(A) is to be made by the court of appeals, not this

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court. See 28 U.S.C. § 2244(b)(3).

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Based on the foregoing, this court must deny Witter’s motion for relief under Rule 60(b).

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In the event Witter chooses to appeal this decision, this court denies a certificate of

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appealability (COA).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a

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substantial showing of the denial of a constitutional right." With respect to claims rejected on the

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merits, a petitioner "must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484

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(2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA

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will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the

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denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.

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The issue of whether Witter’s Rule 60(b) motion should be treated as a successive petition

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under Gonzalez v. Crosby is not debatable among reasonable jurists and, therefore, does not warrant

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the issuance of a COA.

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The Court has held that Ring, the case on which Hurst is premised, applies only prospectively.
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

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IT IS THEREFORE ORDERED that petitioner's motion for relief from judgment pursuant
to Rule 60(b) (ECF No. 270) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED with respect to
this decision.
IT IS FURTHER ORDERED that pending motions for extension of time (ECF No. 272
and 274) are GRANTED nunc pro tunc as of their respective filing dates.
DATED:

April 11, 2017.

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UNITED STATES DISTRICT JUDGE
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