McLellan v. Baker et al

Filing 25

ORDER. IT IS ORDERED that 18 petitioner's motion to reopen habeas corpus proceedings is DENIED. IT FURTHER IS ORDERED that 19 petitioner's motion for stay and abeyance is DENIED. IT FURTHER IS ORDERED that a certificate of appealability will not issue. Signed by Judge James C. Mahan on 4/10/2020. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11

CURT MCLELLAN,

12

Petitioner,

13
14

Case No. 2:16-cv-03038-JCM-CWH
ORDER

v.
RENEE BAKER, et al.,

15

Respondents.

16
17

I.

Introduction

18

This is a closed, counseled habeas corpus action under 28 U.S.C. § 2254. Currently

19

before the court are two motions. First is petitioner's motion to reopen habeas corpus proceedings

20

(ECF No. 18), to which respondents have filed an opposition (ECF No. 21) and petitioner has

21

filed a reply (ECF No. 24). Second is petitioner's motion for stay and abeyance of exhausted

22

claims (ECF No. 19), and the court has ordered (ECF No. 23) that respondents need not respond

23

to it until the court has resolved the motion to reopen. The court finds that petitioner has not

24

demonstrated the extraordinary circumstances necessary to grant him relief under Rule 60(b)(6)

25

of the Federal Rules of Civil Procedure. The court denies the motion to reopen. The court denies

26

the motion for stay and abeyance because the court is not granting petitioner relief from the

27

judgment.

28
1

1

II.

2

Background
Petitioner commenced this action on December 30, 2016, with a counseled petition for a

3

writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The court directed respondents

4

to file a response to the petition. ECF No. 2. Respondents filed a motion to dismiss on

5

September 7, 2017. ECF No. 7. Petitioner filed an opposition on December 20, 2017. ECF No.

6

11. Respondents filed a reply on January 26, 2018. ECF No. 14. On August 23, 2018, the court

7

granted the motion to dismiss in part, finding that petitioner had not exhausted ground E of the

8

petition. ECF No. 15. The court gave petitioner thirty days to move to dismiss the entire petition,

9

to move to dismiss the unexhausted ground, or to file a motion for other relief. Id. If petitioner

10

did nothing, then the court would dismiss the action. Id. Petitioner did nothing. On November

11

14, the court dismissed the action without prejudice. ECF No. 16.

12

Petitioner states that he has filed another post-conviction habeas corpus petition in the

13

state courts. Respondents respond that petitioner has not provided a copy of that petition, and

14

they could find none in the on-line records of the state courts. ECF No. 21 at 4. The court agrees

15

with respondents. The court also has searched the on-line records of the Eighth Judicial District

16

Court of the State of Nevada1 and the Nevada Supreme Court.2 The court could find no new state

17

post-conviction habeas corpus petition.

18

III.

19

Discussion
Petitioner originally based his motion to reopen upon Rule 60(b)(1) and 60(b)(6) of the

20

Federal Rules of Civil Procedure. Rule 60(b)(1) allows the court to grant relief from the

21

judgment because of "mistake, inadvertence, surprise, or excusable neglect." Under Rule

22

60(c)(1), petitioner needed to file a Rule 60(b)(1) motion within a reasonable time and not more

23

than a year after entry of the judgment, which he did not. Petitioner concedes that the motion

24

under Rule 60(b)(1) is untimely. ECF No. 24 at 2. His argument under Rule 60(b)(6) remains.

25
26
27
28

1

https://www.clarkcountycourts.us/Portal/Home/Dashboard/29 (search conducted April 1, 2020). Even though
petitioner might not be incarcerated in the Eighth Judicial District, he was convicted in that court, and the venue for
any post-conviction petition that challenges the validity of the judgment of conviction is that court. Nev. Rev. Stat.
§ 34.738(1).
22
http://caseinfo.nvsupremecourt.us/public/publicActorSearch.do (search conducted April 1, 2020).

2

1
2
3

A.

Petitioner has not demonstrated extraordinary circumstances for relief under

Rule 60(b)(6).
Rule 60(b)(6) allows the court to grant relief from the judgment because of "any other

4

reason that justifies relief." Under Rule 60(c)(1), petitioner needs to file a Rule 60(b)(6) motion

5

within a reasonable time after entry of the judgment. "A movant seeking relief under Rule

6

60(b)(6) must show '"extraordinary circumstances" justifying the reopening of a final judgment.'

7

Such circumstances 'rarely occur in the habeas context.'" Jones v. Ryan, 733 F.3d 825, 833 (9th

8

Cir. 2013) (citations omitted).

9

Petitioner's motion to reopen is lacking any explanation of extraordinary circumstances

10

that could justify relief from the judgment. The court did nothing extraordinary in dismissing this

11

action. The court found that petitioner had not exhausted his state-court remedies for one claim.

12

ECF No. 15 at 2. The court informed petitioner that a mixed petition, containing both exhausted

13

and unexhausted claims, is subject to dismissal. Id. at 3. See also Rose v. Lundy, 455 U.S. 509,

14

521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983). The court informed

15

petitioner of his choices. He could dismiss the unexhausted claim, he could dismiss the whole

16

action, or he could move for other relief. The court informed petitioner that if he did nothing

17

within the allotted time, then the court would dismiss the action. ECF No. 15 at 4. The court

18

does the same thing for every habeas corpus action that has both exhausted claims and

19

unexhausted claims. When petitioner did nothing in response to that order, the court did the only

20

thing that it could do under Rose v. Lundy: The court dismissed the action. In other words, the

21

court did nothing extraordinary in this action.

22

There the matter stood. The time to move to alter or amend the judgment expired. See

23

Fed. R. Civ. P. 59(e). The time to appeal expired. See Fed. R. App. P. 4(a)(1)(A). The time to

24

move for an extension of the time to appeal expired. See Fed. R. App. P. 4(a)(5). The time to

25

move for a reopening of the time to appeal expired. See Fed. R. App. P. 4(a)(6). The time to

26

move for relief from the judgment under Rules 60(b)(1), (2), and (3) expired. See Fed. R. Civ. P.

27

60(c)(1). In the ordinary course of judicial business, this action was closed, with a final

28

judgment, for more than fifteen months before petitioner filed his motion to reopen.
3

1

The court has checked its notices of electronic filing for the order granting in part the

2

motion to dismiss (ECF No. 15), the order dismissing the action (ECF No. 16), and the judgment

3

(ECF No. 17). The court sent all three notices of electronic filing to counsel for petitioner at

4

counsel's email addresses of record. The court did not fail to provide petitioner with notice of

5

either the decision on the motion to dismiss or the dismissal of the action. Petitioner's attachment

6

of the court's orders reinforces this conclusion. ECF No. 18-1 at 101-08.

7

Petitioner claims that he "was unable to proceed with his defense in a proper fashion," and

8

that "his default resulted, not from a lack of meritorious claims, but for procedural circumstances

9

beyond his control." ECF No. 18 at 8, 9. First, the court did not enter a default judgment, as the

10

term is understood in Rule 55 of the Federal Rules of Civil Procedure. Because petitioner did not

11

respond to the court's order, the court dismissed the action for failure to exhaust his state-court

12

remedies. ECF No. 16. Second, petitioner has not explained how he was unable to proceed with

13

his defense or how the dismissal of this action was beyond his control. Third, petitioner has not

14

explained why he waited more than fifteen months to file the motion to reopen. As explained

15

above, the court gave petitioner the opportunity to decide what to do with the unexhausted claim.

16

Post-judgment, he could have sought relief from or appellate review of the judgment. He did not

17

take any of these opportunities, and he does not tell the court why. The court concludes that

18

petitioner has not filed his motion to reopen within a reasonable time under Rule 60(c)(1) and that

19

petitioner has not demonstrated the extraordinary circumstances for relief from the judgment

20

under Rule 60(b)(6).

21

B.

22

The court told respondents that they need not respond to the motion for stay and abeyance

23

(ECF No. 19), until after the court rules on the motion to reopen (ECF No. 18), if necessary. The

24

court has reviewed the motion for stay and abeyance in case petitioner provided the explanations

25

lacking in the motion to reopen. The motion for stay and abeyance also is lacking in any

26

explanation of extraordinary circumstances or why petitioner waited so long.

27
28

The court denies the motion for stay and abeyance

The motion for stay and abeyance raises even more questions. Petitioner seeks a stay of
this action while he exhausts his claim in state court under Rhines v. Weber, 544 U.S. 269 (2005).
4

1

This was one of the possibilities under the order directing petitioner to choose what to do with the

2

unexhausted ground. Rhines was more than ten years old when the court granted the motion to

3

dismiss in part. It is not new law that petitioner could not have known about when the court

4

granted in part the motion to dismiss. In either the motion to reopen or the motion for stay and

5

abeyance, petitioner does not explain why he could not timely file the motion for stay and

6

abeyance after the court granted the motion to dismiss in part.

7
8

Respondents will not need to respond to the motion for stay and abeyance. The court will
deny that motion because it is denying the motion to reopen the action.

9

C.

10

might be an issue

11

A new habeas corpus action will not be second or successive, but timeliness

The court needs to correct one statement by respondents. They argue that petitioner can

12

move in the Ninth Circuit for authorization to file a second or successive petition under 28 U.S.C.

13

§ 2244(b). That is incorrect. "A petition filed after a mixed petition has been dismissed under

14

Rose v. Lundy before the district court adjudicated any claims is to be treated as 'any other first

15

petition' and is not a second or successive petition." Slack v. McDaniel, 529 U.S. 473, 487

16

(2000). Petitioner does not need authorization from the Ninth Circuit before he files another

17

petition in this court. However as the court noted in the order dismissing this action, the court

18

makes no statement whether any such petition would be timely under 28 U.S.C. § 2244(d)(1).

19

ECF No. 16.

20

D.

The court will not issue a certificate of appealability

21

Reasonable jurists would not find the court's decision to be debatable or wrong, and the

22

court will not issue a certificate of appealability for the denial of the motion to reopen.

23

IV.

24
25

Conclusion
IT THEREFORE IS ORDERED that petitioner's motion to reopen habeas corpus

proceedings (ECF No. 18) is DENIED.

26

IT FURTHER IS ORDERED that petitioner's motion for stay and abeyance (ECF No. 19)

27

is DENIED.

28

///
5

1

IT FURTHER IS ORDERED that a certificate of appealability will not issue.

2

DATED:

April 10, 2020.

3

______________________________
JAMES C. MAHAN
United States District Judge

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6