Holmes v. Williams et al

Filing 31

ORDER denying 29 Motion to alter or amend. IT IS FURTHER ORDERED a certificate of appealability is DENIED. Signed by Judge James C. Mahan on 1/27/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT HOLMES III,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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

Respondents.

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Before the court are petitioner’s motion to alter or amend (#29) and respondents’ opposition

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(#30). The court has dismissed this action because it is untimely, and the court already has denied

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an earlier motion for relief from judgment.

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Petitioner argues that the court should grant him relief from the judgment pursuant to Rule

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60(b)(4) of the Federal Rules of Civil Procedure. Rule 60(b)(4) allows relief from a void judgment.

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However, the judgment that petitioner argues is void is the judgment of conviction of the state court,

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because he argues that the search warrants were forged. Rule 60 is used for this court to grant relief

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from its own judgments, not judgments of state courts. Habeas corpus is the sole means that

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petitioner can gain relief in this court from the judgment of a state court. As the court has already

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explained in its denial of petitioner’s earlier motion, a claim that the search warrant was forged is

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subject to the one-year statute of limitation of 28 U.S.C. § 2244(d)(1).

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Petitioner also argues that the court should grant him relief based upon Martinez v. Ryan,
132 S. Ct. 1309 (2012). Response, at 7-9 (#9). In Martinez, the Court held:

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Where, under state law, claims of ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

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Id. at 1320 (emphasis added). The distinction between procedural default and untimeliness is

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important. A claim is procedurally defaulted in federal court if the decision of the state court

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regarding that claim rested on a state-law ground that is independent of the federal question and

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adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). In

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petitioner’s case, procedural default is not the issue. The court has not determined that it cannot

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reach the merits of petitioner’s claims due to state-court applications of state law. Rather, the court

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has determined that the federal habeas corpus petition is untimely because of application of federal

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law, 28 U.S.C. § 2244(d)(1). Martinez is inapplicable to petitioner’s situation.

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To the extent that a certificate of appealability is necessary, the court will not issue one.

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IT IS THEREFORE ORDERED that petitioner’s motion to alter or amend (#29) is

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DENIED.

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

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DATED: January 27, 2015.

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_________________________________
JAMES C. MAHAN
United States District Judge

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