Warenback v. Neven et al

Filing 17

ORDER Denying Petitioner's 13 Motion for District Judge to Reconsider Order. Petitioner's 14 Motion for Submission of the Motion to Reconsider is Denied. Respondents' 15 Motion to Extend Time to File a Responsive Pleading t o the 11 Petition for Writ of Habeas Corpus is Granted. Respondents shall file such responsive pleading within 45 days of the date of this Order. Signed by Judge Andrew P. Gordon on 5/3/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DOUGLAS HARRY WARENBACK,

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Case No. 2:15-cv-01789-APG-VCF

Plaintiff,

ORDER

v.
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D.W. NEVEN, et al.,
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Defendants.
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On January 4, 2016, the court screened this pro se petition for writ of habeas

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corpus pursuant to the Rules Governing Habeas cases and directed that it be served on

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respondents (Dkt. #10). In the screening order, the court dismissed ground 1 for failure

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to state a claim for which relief may be granted. Petitioner Douglas Harry Warenback

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has filed a motion for reconsideration of the dismissal of ground 1 pursuant to Rule

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60(b) of the Federal Rules of Civil Procedure (Dkt. #13).

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Rule 60(b) entitles the moving party to relief from judgment on several grounds,

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including the catch-all category “any other reason justifying relief from the operation of

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the judgment.” Fed.R.Civ.P. 60(b)(6). A motion under subsections (b)(4-6) must be

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brought “within a reasonable time.” Fed.R.Civ.P. 60(c)(1). Relief under subsection

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(b)(6) requires a showing of “extraordinary circumstances.” Gonzalez v. Crosby, 545

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U.S. 524, 535 (2005). Rule 60(b) applies to habeas proceedings, but only in conformity

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with Antiterrorism and Effective Death Penalty Act (AEDPA), including the limits on

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successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez, 545 U.S. at

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529. When a Rule 60(b) motion attacks some defect in the integrity of the federal

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habeas proceedings and not the substance of the court’s resolution of a claim on the

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merits the court should address it as it would a Rule 60(b) motion raised in any other

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civil case. Id. at 532.

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Here, although Warenback styled this pleading as a motion, it in substance seeks
a successive consideration of ground 1. See id. at 531. He does not challenge the
integrity of the proceedings, and therefore, the motion is barred under AEDPA. Id.
IT IS THEREFORE ORDERED that petitioner’s motion for district judge to
reconsider order (Dkt. #13) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for submission of the motion
to reconsider (Dkt. #14) is DENIED.
IT IS FURTHER ORDERED that respondents’ motion for extension of time to file
a responsive pleading to the petition (Dkt. #15) is GRANTED. Respondents shall file
such responsive pleading within forty-five (45) days of the date of this order.

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DATED: 3 May 2016.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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