Nelson v. Attorney General of the State of Nevada, et al

Filing 83

ORDER that petitioner's motion pursuant to FRCP 6(b) (ECF No. 79 ) and motion for appointment of counsel (ECF No. 80 ) are both DENIED as set forth in this order; a certificate of appealability is denied. Signed by Judge Larry R. Hicks on 7/8/2019. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

JIMMY LEE NELSON,

10
11
12
13

Case No. 3:06-cv-00129-LRH-VPC
Petitioner, ORDER

v.
NEVADA ATTORNEY GENERAL, et al.,
Respondents.

14

This court dismissed Nevada state prisoner Jimmy Lee Nelson’s habeas corpus

15

petition with prejudice in October 2007, and judgment was entered (ECF Nos. 38, 39).

16

Almost twelve years later, Nelson has filed a motion for relief from judgment pursuant to

17

Rule 60(b) of the Federal Rules of Civil Procedure as well as a motion for appointment

18

of counsel (ECF Nos. 79, 80). The motions are denied.

19

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

20

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

21

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

22

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

23

Here, the Ninth Circuit Court of Appeals affirmed this court’s dismissal of the

24

petition in October 2009 (ECF No. 50). In June 2014, this court considered Nelson’s

25

previous Rule 60(b) motion (ECF No. 78). The court allowed the Federal Public

26

Defender to withdraw and appointed substitute counsel to investigate and possibly

27

pursue the issues Nelson raised. Substitute counsel ultimately filed a notice stating that

28
1

1

“[i]nvestigation has been completed in this case and at this time counsel will not be

2

reopening this case” (ECF No. 74, pp. 1-2) In its order denying the motion, the court

3

discussed Nelson’s assertions of actual innocence at length and concluded that they

4

were baseless (ECF No. 78). The court emphasized that “all other requests for relief

5

asserted herein by petitioner in proper person seeking to reopen the matter [are

6

denied], with this order constituting a conclusive and final denial of relief under Rule

7

60(b) with regard to the October 31, 2007 final judgment.” Id. at 10. The court also

8

granted Nelson’s request to terminate substitute, stating that it would not appoint further

9

replacement counsel. The court observed “[c]urrent counsel has fully discharged her

10

obligations in the matter, and no competent counsel would pursue the matter further

11

based on the record and the self-serving assertions presented.” Id. at 9.

12

Nelson’s new motion for relief from judgment merely claims, with no elaboration,

13

that there was “provable fraud on the court 21 years ago” and that the prosecutor

14

presented false and misleading evidence (ECF No. 79). These bare, vague assertions

15

provide no basis for Rule 60(b) relief. The court also declines to appoint counsel. The

16

motions are both denied.

17

IT IS THEREFORE ORDERED that petitioner’s motion pursuant to FRCP 6(b)

18

(ECF No. 79) and motion for appointment of counsel (ECF No. 80) are both DENIED as

19

set forth in this order.

20

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

21
22

DATE this 8th day of July, 2019.

23
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
2