Holmes v. Williams et al

Filing 28

ORDER Denying 16 Petitioner's Motion for Relief from Judgment; Denying 17 Petitioner's Motion for Appointment of Counsel; and Denying 18 Petitioner's Motion to Correct Fraud and Forgery of Petitioner's Search Warrants and Relief from Judgment. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge James C. Mahan on 02/04/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT HOLMES III,

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Petitioner,

Case No. 2:12-cv-00013-JCM-GWF
ORDER

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vs.

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BRIAN WILLIAMS, et al.,

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Respondents.

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Before the court are petitioner’s motion for relief from judgment (#16), respondents’

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opposition (#23), and petitioner’s reply (#27). The court is not persuaded by petitioner’s argument,

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and the court denies the motion.

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The court had noticed upon its initial review of the petition (#4) that it appeared to be

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untimely pursuant to 28 U.S.C. § 2244(d)(1), and the court directed petitioner to show cause why

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the court should not dismiss the action. There were three factors in the court’s initial determination.

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First, petitioner did not appeal from the judgment of conviction, and the judgment became final

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upon expiration of the time to appeal. Second, petitioner filed a motion to withdraw his plea, and

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the court assumed that the time spent on that motion was tolled pursuant to 28 U.S.C. § 2244(d)(2).

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Third, petitioner filed a state habeas corpus petition, which the state courts determined was untimely

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pursuant to Nev. Rev. Stat. § 34.726(1); that petition was not “properly filed” within the meaning of

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28 U.S.C. § 2244(d)(2) and was ineligible to toll the federal one-year period of limitation. Order

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(#3) (citing, among other decisions, Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)).

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Petitioner filed a response (#7), arguing that the state courts erred in its determination that

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the state habeas corpus petition was untimely. Before he filed his state habeas corpus petition, he

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had filed a motion to withdraw his guilty plea in state court. He argued that the state courts should

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have tolled the time spent on the plea-withdrawal motion, and thus the state habeas corpus petition

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would have been timely.1 Response, at 2-3 (#7). This court rejected that argument, because the

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Nevada Supreme Court’s determination was the final word on the timeliness of the state petition.

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Order (#14) (citing Pace, 544 U.S. at 414).

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Rule 60(b) of the Federal Rules of Civil Procedure allows the court to grant petitioner relief
from judgment for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.

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Petitioner now argues that he instructed his attorney at the time of sentencing, Kirk Kennedy,

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to appeal from the judgment of conviction, that Kennedy told him that he had appealed, but that

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Kennedy actually had not filed an appeal. Petitioner further argues that if Kennedy actually had

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appealed, then pursuant to Nev. Rev. Stat. § 34.726(1) the state-law one-year period of limitation

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would not have commenced until the Nevada Supreme Court issued its remittitur, and his state

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habeas corpus petition would have been timely. Then, if the state habeas corpus petition would

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have been timely, it would have been eligible for tolling pursuant to 28 U.S.C. § 2244(d)(2), and his

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federal habeas corpus petition would have been timely.

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This is an entirely new argument. Originally, petitioner argued that the state courts applied

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state law incorrectly. Now, petitioner is arguing that counsel’s failures led to the untimeliness of his

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state petition and, through that, his federal habeas corpus petition.

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As part of that argument, petitioner cited to the federal tolling provision, 28 U.S.C.
§ 2244(d)(2). That provision applies only to federal habeas corpus petitions filed in federal court.
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None of the first five divisions of Rule 60(b) apply. The argument that petitioner presents

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now is an argument that he could have, but did not, present in his response (#7). Rule 60(b)(1) does

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not apply because the court gave him notice of the untimeliness of the petition and told him what to

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do. Rule 60(b)(2) does not apply because there is no new evidence that petitioner could not have

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discovered earlier. Rule 60(b)(3), (4), and (5) by their very terms are inapplicable to the motion

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(#16).

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As for Rule 60(b)(6), petitioner needs to show extraordinary circumstances why he did not

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present his argument earlier. Gonzalez v. Crosby, 545 U.S. 524, 535-36 (2005). Petitioner has not

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made any such attempt, and the court does not see any extraordinary circumstances.

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Even if the court were to construe petitioner’s motion (#16) as a motion to alter or amend the

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judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, the result would be the

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same. Such a motion for reconsideration is not the time or the method for presenting a new

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argument to the court. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

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Also before the court is petitioner’s motion to correct or relief from judgment to correct

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fraud or forgery of petitioner’s search warrants (#18) and respondents’ opposition. As the title of

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the motion indicates, petitioner is complaining about the process used to obtain a warrant to search

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his house and the search itself. This motion is irrelevant. The court did not dismiss this action

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because it determined that the search of petitioner’s house was reasonable. The court dismissed this

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action because it was untimely. A claim of unreasonable search and seizure, like any other federal

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habeas corpus claim, is subject to the one-year period of limitation of 28 U.S.C. § 2244(d).

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To the extent that a separate certificate of appealability is required to appeal from the denial

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of either motion, reasonable jurists would not find the court’s conclusions to be debatable or wrong,

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and the court will not issue a certificate of appealability.

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The court denies petitioner’s motion for appointment of counsel (#17) because the court is

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denying petitioner’s other motions.

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IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment (#16),

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motion for appointment of counsel (#17), and motion to correct or relief from judgment to correct

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fraud or forgery of petitioner’s search warrants (#18) are motion to correct or relief from judgment

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to correct fraud or forgery of petitioner’s search warrants (#18) are DENIED.

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

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DATED: February 4, 2014.

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_________________________________
_____________________________
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JAMES C. MAHAN
JAMES
ES
United States District Judge
United
nite

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