Braunstein v. Williams et al
Filing
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ORDER that 5 Motion for Reconsideration and 9 "Motion for Leave to Refile 28 USC 2241 on Order of Ninth Circuit Remand" are both DENIED. FURTHER ORDERED that petitioner is denied a certificate of appealability with respect to this order. Signed by Judge Andrew P. Gordon on 4/20/17. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STEVEN BRAUNSTEIN,
Plaintiff,
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Case No. 2:16-cv-2556-APG-NJK
ORDER
v.
BRIAN WILLIAMS, et al.,
Defendants.
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This is a habeas corpus proceeding under 28 U.S.C. § 2254. Pending before the court are
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petitioner’s motion for reconsideration (ECF No. 5) and a motion the petitioner has styled as a
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“motion for leave to refile 28 USC 2241 on order of Ninth Circuit remand” (ECF No. 9).
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Because the effective date of petitioner’s appeal of this court’s judgment pre-dates the
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filing of his motion for reconsideration, this court has lost jurisdiction to rule upon a motion
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seeking relief from that judgment. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)
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(concluding that district court lacked jurisdiction over petitioner’s Rule 60(b) motion filed
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subsequent to notice of appeal). Even so, a party may “ask the district court for an indication
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that it is willing to entertain a Rule 60(b) motion. If the district court gives such an indication,
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then the party should make a motion in the Court of Appeals for a limited remand to allow the
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district court to rule on the motion.” Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1113 n. 21
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(9th Cir. 1989); see also, Gould v. Mutual Life Insurance Co., 790 F.2d 769, 772 (9th Cir. 1986).
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This practice has been adopted by the Federal Rules of Civil Procedure. Rule 62.1(a)
states, “If a timely motion is made for relief that the court lacks authority to grant because of an
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appeal that has been docketed and is pending, the court may: (1) defer considering the motion;
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(2) deny the motion; or (3) state either that it would grant the motion if the court of appeals
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remands for that purpose or that the motion raises a substantial issue.” The third option is often
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referred to as an “indicative ruling.” See Fed. Ct. App. Manual § 15:12.5 (5th ed.).
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Under Rule 60(b), the court may relieve the moving party from a final judgment on
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several grounds, including the catch-all category “any other reason justifying relief from the
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operation of the judgment.” Fed. R. Civ. P. 60(b)(6). Petitioner has not made a convincing case
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that he is entitled to relief under any of the grounds listed under (b)(1) through (b)(5).
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Relief under subsection (b)(6) requires a showing of “extraordinary circumstances.”
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Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). “Such circumstances will rarely occur in the
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habeas context.” Id. Here, petitioner does not identify any circumstances that would qualify as
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extraordinary. Simply put, even if this court had jurisdiction to rule upon petitioner’s Rule 60(b)
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motion, it would deny it. The court also concludes that petitioner’s motion does not raise a
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substantial issue for the purposes of Rule 62.1(a)(3).
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Likewise, this court must also deny petitioner’s other motion (ECF No. 9), with which he
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asks this court to allow him to file an amended habeas petition. Petitioner appears to be laboring
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under the perception that this proceeding has been remanded to this court by the Ninth Circuit,
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which is not the case. See ECF Nos. 6/8. He also appears to be contending that limitations on
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second or successive petitions under 28 U.S.C. § 2254 do not apply to his proposed amended
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petition because he is bringing it under 28 U.S.C. § 2241. However, it is well established that a
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state habeas petitioner may not avoid the limitations imposed on successive petitions by styling
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his petition as one pursuant to § 2241 rather than § 2254. See Greenawalt v. Stewart, 105 F.3d
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1287, 1287-88 (9th Cir.1997); see also White v. Lambert, 370 F.3d 1002, 1007 (9th Cir. 2004)
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(confirming that § 2254 is the exclusive avenue for a state court prisoner to challenge the
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constitutionality of his detention).
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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 5)
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and “motion for leave to refile 28 USC 2241 on order of Ninth Circuit remand” (ECF No. 9) are
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both DENIED.
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IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability with
respect to this order.
DATED THIS 20th day of April, 2017.
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UNITED STATES DISTRICT JUDGE
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