Smith v. McDaniel et al

Filing 199

ORDER that 193 Motion for Relief from Judgment pursuant to Rule 60(b) is DENIED. FURTHER ORDERED that a certificate of appealability is DENIED with respect to this decision. Signed by Judge James C. Mahan on 6/16/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH WELDON SMITH,
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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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2:07-CV-00318-JCM-CWH
ORDER

Petitioner Smith is a Nevada prisoner sentenced to death. On March 13, 2014, this court

16 entered a final judgment denying Smith’s petition for writ of habeas corpus under 28 U.S.C. § 2254.
17 ECF No. 176. Now before the court is Smith’s motion for relief from judgment pursuant to Rule
18 60(b) of the Federal Rules of Civil Procedure. ECF No. 193. Smith argues that his death sentence is
19 unconstitutional in light of the Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016).
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In Hurst, the Court held that Florida's capital sentencing scheme violated the Sixth

21 Amendment right to a jury trial because, under the scheme, the jury rendered an advisory verdict but
22 the judge ultimately found the facts necessary to impose a sentence of death. 136 S.Ct. at 624. In
23 reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which held that
24 any fact necessary for the imposition of the death penalty must be found by a jury, not a judge. 536
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P. 25(d).

Timothy Filson is substituted for Renee Baker as the warden of Ely State Prison. Fed. R. Civ.

1 U.S. at 589.
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Although a jury imposed the death penalty in Smith’s case, he claims that his death sentence is

3 nonetheless unconstitutional under Hurst because the Nevada death penalty sentencing scheme
4 allowed for a jury to find him eligible for the death penalty without being instructed that it must find
5 beyond a reasonable doubt that there are no mitigating circumstances sufficient to outweigh the
6 aggravating circumstances. Smith reasons that, under Hurst, the weighing of aggravating and
7 mitigating factors is an "element" that must be submitted to the jury and, as such, it necessarily
8 follows that the reasonable doubt standard imposed by the Fifth Amendment applies to the weighing
9 process.
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Smith’s argument notwithstanding, this court is without jurisdiction to rule upon a motion

11 seeking relief from judgment while Smith’s case is on appeal to the Ninth Circuit. See Williams v.
12 Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (concluding that district court lacked jurisdiction over
13 petitioner’s Rule 60(b) motion filed subsequent to notice of appeal). When a case is on appeal, a
14 party may only “ask the district court for an indication that it is willing to entertain a Rule 60(b)
15 motion. If the district court gives such an indication, then the party should make a motion in the
16 Court of Appeals for a limited remand to allow the district court to rule on the motion.” Sierra
17 Pacific Industries v. Lyng, 866 F.2d 1099, 1113 n. 21 (9th Cir. 1989); see also, Gould v. Mutual Life
18 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,

20 “If a timely motion is made for relief that the court lacks authority to grant because of an appeal that
21 has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the
22 motion; or (3) state either that it would grant the motion if the court of appeals remands for that
23 purpose or that the motion raises a substantial issue.” Cognizant of this procedure, Smith asks this
24 court to enter a ruling under the third option, which is often referred to as an “indicative ruling.” See
25 Fed. Ct. App. Manual § 15:12.5 (5th ed.).
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Rule 60(b) applies to habeas proceedings, but only in conformity with AEDPA,2 including the

2 limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez v. Crosby, 545 U.S.
3 524, 529 (2005). If a Rule 60(b) motion seeks to add a new ground for relief or attack this court's
4 previous resolution of a claim on the merits, it is, in substance, a successive habeas petition subject to
5 the requirements of 28 U.S.C. § 2244(b). Id. at 531. If, however, the motion “attacks, not the
6 substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of
7 the federal habeas proceedings,” the motion is not a successive habeas petition. Id. at 532.
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Smith’s motion clearly falls in the former category. Accordingly, this court is not permitted to

9 address the merits of Smith’s Hurst-based claim until Smith obtains authorization from the court of
10 appeals pursuant to 28 U.S.C. § 2244(b)(3).
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Smith argues that his motion is not a successive petition because his appeal of this court’s

12 final order is still pending. He does not, however, cite to any controlling authority for the proposition
13 that the pendency of his appeal from the denial of his first habeas petition excuses him from obtaining
14 permission from the court of appeals to raise his new claim. While a Second Circuit case arguably
15 supports Smith’s position (Whab v. United States, 408 F.3d 116 (2nd Cir. 2005)), opposing cases from
16 other circuits are more persuasive. See Ochoa v. Sirmons, 485 F.3d 538, 541 (10th Cir. 2007) (holding
17 that no controlling authority “suggests that whether a Rule 60(b) motion or other procedural vehicle
18 may be used to circumvent § 2244(b) depends on the incidental fact that an appeal is or is not pending
19 from the underlying habeas proceeding”) and Phillips v. United States, 668 F.3d 433, 435 (7th Cir.
20 2012) (“Nothing in the language of § 2244 or § 2255 suggests that time-and-number limits are
21 irrelevant as long as a prisoner keeps his initial request alive through motions, appeals, and
22 petitions.”).
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Smith also argues that, even if § 2244 does apply, he is still entitled to relief because §

24 2244(b)(2)(A) permits him to pursue a claim that “relies on a new rule of constitutional law made
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The Antiterrorism and Effective Death Penalty Act.

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1 retroactive to cases on collateral review by the Supreme Court that was previously unavailable.” That
2 provision does not, however, provide a basis for this court to issue an indicative ruling in Smith’s
3 favor. Setting aside the absence of a decision from the Supreme Court making Hurst retroactive,3 the
4 determination under § 2244(b)(2)(A) is to be made by the court of appeals, not this court. See 28
5 U.S.C. § 2244(b)(3).
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Based on the foregoing, this court must deny Smith’s motion for relief under Rule 60(b).

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

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

10 substantial showing of the denial of a constitutional right." With respect to claims rejected on the
11 merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment
12 of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing
13 Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if
14 reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a
15 constitutional right and (2) whether the court's procedural ruling was correct. Id.
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The issue of whether Smith’s Rule 60(b) motion should be treated as a successive petition

17 under Gonzalez v. Crosby is not debatable among reasonable jurists and, therefore, does not warrant
18 the issuance of a COA.
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IT IS THEREFORE ORDERED that petitioner's motion for relief from judgment pursuant

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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). Smith argues that the retroactivity of the beyond a
reasonable doubt standard was established in Ivan v. New York City, 407 U.S. 203, 204-05 (1972).
However, Smith cannot claim that his Hurst claim relies on a “new rule,” then cite a case that predates
Hurst by 44 years to establish its retroactivity. See Tyler v. Cain, 533 U.S. 656, 662–63 (2001) (holding
that “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds
it to be retroactive”). Moreover, this court views Hurst as simply the application of Ring to Florida’s
“hybrid” capital sentencing scheme and is not convinced that it announced a new rule, much less one
that imposes the beyond a reasonable doubt standard on the weighing of aggravating and mitigating
circumstances. See Hurst, 136 S.Ct. at 621 (“We granted certiorari to resolve whether Florida’s capital
sentencing scheme violates the Sixth Amendment in light of Ring.”).

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1 to Rule 60(b) (ECF No. 193) is DENIED.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED with respect to

3 this decision.
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DATED: June 16, 2017.

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_________________________________________
UNITED STATES DISTRICT JUDGE

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