Sims v. Williams

Filing 25

ORDER that 22 Motion to Reopen Case is DENIED. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge James C. Mahan on 7/15/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WAYNE SIMS,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:08-cv-00393-JCM-GWF

Respondents.

ORDER

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Before the court are petitioner’s motion to reopen (#22) and respondents’ opposition (#24).
The motion is without merit, and the court denies it.
This court received the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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(#5) on March 27, 2008. Respondents filed their answer (#11) on September 5, 2008. The petition

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was awaiting a decision on the merits when on September 1, 2009, petitioner filed a motion to

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dismiss the action voluntarily without prejudice (#14). On November 23, 2009, the court entered an

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order (#17) and judgment (#18) granting the motion and dismissing the action. The court warned

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petitioner that the dismissal of the action did not affect the running of the period of limitations

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pursuant to 28 U.S.C. § 2244(d).

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The court agrees with respondents. The dismissal of the action without prejudice is still a

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dismissal of the action, and the court entered final judgment. The time to appeal the judgment

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expired years ago. In the motion (#22), petitioner states that he made a mistake in dismissing the

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action voluntarily. Mistake, inadvertence, surprise, or excusable neglect are grounds for relief from

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the judgment. Fed. R. Civ. P. 60(b)(1). However, petitioner needed to file such a motion within

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one year of entry of the judgment. Fed. R. Civ. P. 60(c)(1). Petitioner filed the motion (#22) years

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after the time to file a Rule 60(b)(1) motion expired. Petitioner has not given any other reason

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under Rule 60(b) why the court should reinstate the action. Even if he did, and even if the reason is

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one for which the one-year limit does not apply, petitioner still has not explained why he took so

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long to file the motion. See Fed. R. Civ. P. 60(c)(1) (motion to be filed within reasonable time, and

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no more than one year for certain reasons).

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Reasonable jurists would not find the court’s conclusions in this order to be debatable or
wrong, and the court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner’s motion to reopen (#22) is DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: July 15, 2014.

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_________________________________
JAMES C. MAHAN
United States District Judge

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