Brown v. Williams et al

Filing 54

ORDER Denying Petitioner's 48 Motion for Relief from Judgment. Petitioner is denied a certificate of appealability with respect to the denial of his motion. Signed by Judge James C. Mahan on 10/3/2016. (Copies have been distributed pursuant to the NEF - cc: USCA - SLD)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
ERICK MARQUIS BROWN,
10
11
12
13
14

)
)
Petitioner,
)
)
vs.
)
)
BRIAN WILLIAMS, et al.,
)
)
Respondents.
)
____________________________________/

2:14-cv-00194-JCM-CWH
ORDER

15

Before the court is petitioner’s motion for relief from judgment pursuant to Rule 60(b) of the

16

Federal Rules of Civil Procedure. ECF No. 48. With the motion, petitioner asks this court to vacate

17

the order and judgment dismissing his petition as untimely. For the reasons that follow, the motion

18

is denied.

19

Brown argues that he can satisfy the requirements for relief from judgment under either Fed.

20

R. Civ. P. 60(b)(1) – “mistake, inadvertence, surprise, or excusable neglect” – or Fed. R. Civ. P.

21

60(b)(6) – “any other reason that justifies relief.” A movant seeking relief under Rule 60(b)(6) must

22

show “‘extraordinary circumstances justifying the reopening of a final judgment.” Gonzalez v.

23

Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)).

24

Such circumstances “rarely occur in the habeas context.” Id.

25
26

In arguing he is entitled to relief under Rule 60(b), Brown focuses on this court’s
determination that, to the extent he was relying on attorney abandonment or attorney misconduct as a

1

ground for equitable tolling, such tolling could not extend beyond July 12, 2013, the date he was

2

notified that the Nevada Supreme Court had affirmed of the lower court’s denial of his state habeas

3

petition. The court’s reasoning was that, by that time, Brown had “initiated his campaign of filing

4

numerous pro se pleadings in the state court, a clear indication that he was no longer relying on [his

5

attorney] to pursue relief on his behalf.” ECF No. 46, p. 7.

6

Brown insists that he continued to depend upon his attorney to pursue collateral relief on his

7

behalf “until the end of the calendar year of 2013.” ECF No. 48, p. 5. As support, he submits

8

evidence of letters and phone calls to his attorney, Robert Langford, in July and August of that year.

9

This argument is undermined, however, by the fact that, on August 29, 2013, this court received

10

from Brown a pro se habeas petition nearly identical to the one he submitted on January 28, 2014, in

11

this proceeding. See Brown v. Williams, 2:13-cv-01574-JCM-CWH. That petition was dismissed

12

without prejudice on September 5, 2013, due to Brown’s failure to pay the filing fee or file a

13

complete in forma pauperis application. Id., ECF No. 2.

14

That aborted proceeding establishes that Brown was not depending entirely upon Langford to

15

pursue relief in August of 2013. Moreover, the order dismissing the proceeding included a specific

16

warning that Brown was “responsible for calculating the running of the federal limitation period as

17

applied to his case” and “properly commencing a timely-filed federal habeas action.” Id., p. 2. With

18

only the need to assemble a proper in forma pauperis application standing in his way, Brown waited

19

another five months to initiate the instant proceeding.

20

Brown also overlooks that the court found his more recent petition untimely even after giving

21

him every possible benefit of the doubt. To begin with, his first state post-conviction proceeding

22

was dismissed as untimely and, therefore, did not statutorily toll the one-year filing period, which

23

expired on December 12, 2008. See Pace v. DiGuglielmo, 544 U.S. 408, 412-17 (2005) (holding a

24

habeas petitioner's state post-conviction petition that was rejected by the state court as untimely

25

under state law is not “properly filed” for the purposes of § 2244(d)(2)’s statutory tolling provision).

26

2

1

Absent a showing his conduct was “egregious,” Langford’s mere failure to initiate a timely state

2

petition is not grounds for equitable tolling. See Holland v. Florida, 560 U.S. 631, 651-52 (2010)

3

(explaining that “unprofessional attorney misconduct may. . . prove ‘egregious’ and can be

4

‘extraordinary,’” but that “‘a garden variety claim of excusable neglect . . . such as a simple

5

‘miscalculation’ that leads a lawyer to miss a filing deadline . . . does not warrant equitable tolling”

6

(internal citations omitted)).

7

Likewise, with respect to Langford’s alleged failure to advise Brown that the state petition

8

was untimely and failure to notify Brown of the Nevada Supreme Court order concluding his state

9

habeas proceeding, the court granted Brown the presumption that Langford’s conduct was

10

sufficiently egregious to amount to an extraordinary circumstance without Brown providing any

11

evidence that demonstrated more than inadvertence or negligence.1 In addition, the court calculated

12

the equitable tolling period based on the unrealistic supposition that Langford could have filed a state

13

habeas petition to toll the statutory period immediately upon being retained.

14

In summary, Brown falls well short of demonstrating that he pursued his rights diligently and

15

that some extraordinary circumstance stood in his way and prevented timely filing. See Id., 130 S.Ct.

16

2549, 1085 (2010); see also Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (noting that the

17

petitioner ultimately has the burden of proof on this “extraordinary exclusion”).

18
19
20
21

Accordingly, this court stands by its determination that Brown’s federal petition is timebarred under 28 U.S.C. § 2244(d).
IT IS THEREFORE ORDERED that petitioner’s motion to for relief from judgment (ECF
No. 48) is DENIED.

22
23
24
25
26

1

Brown alleges that Langford colluded with the district attorney or the state court judge to
sabotage his case, but provides no support other than asserting that “Langford is once again working for
the Clark County’s District Attorney’s office.” ECF No. 48, p. 6.
3

1
2
3
4
5

IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability with
respect to the denial of his motion.
IT IS FURTHER ORDERED that the clerk shall send a copy of this order on the United
States Court of Appeals for the Ninth Circuit (referencing Appellate Case Number 16-15492).
October 3, 2016.
Dated this ______ day of October, 2016.

6
7
UNITED STATES DISTRICT JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4