Friedman v. State Of Nevada et al

Filing 339

ORDER denying 328 motion for relief from judgment and denying request for certificate of appealability. (Copy sent via NEF to USCA - 13-16821.) Signed by Judge Larry R. Hicks on 5/2/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KENNETH FRIEDMAN,

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Petitioner,
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vs.
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JACK PALMER, et al.,
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Respondents.
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____________________________________/

3:07-cv-00338-LRH-VPC
ORDER

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This closed action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

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§ 2254, by a Nevada state prisoner. By order filed August 21, 2013, the Court entered an order

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resolving several motions and denying the federal petition in its entirety. (ECF No. 326). The

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Court’s order also denied petitioner a certificate of appealability. (Id.). Judgment was entered on

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August 21, 2013. (ECF No. 327).

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On September 9, 2013, petitioner filed a motion pursuant to Rule 60(b) for relief from

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judgment. (ECF No. 328). On that same date, petitioner filed a notice of appeal. (ECF No. 329).

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On October 3, 2013, respondents filed an opposition to petitioner’s motion for relief from judgment.

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(ECF No. 336). On October 15, 2013, petitioner filed a reply to the opposition. (ECF No. 337). On

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September 27, 2013, the United States Court of Appeals for the Ninth Circuit filed an order holding

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the appellate proceedings in abeyance pending this Court’s resolution of petitioner’ pending motion

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of September 9, 2013. (ECF No. 335). This Court now considers petitioner’s Rule 60(b) motion.

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Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for
the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence, that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
A district court has discretion not to consider claims and issues that were not raised until a

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motion for reconsideration. Hopkins v. Andaya, 958 F.2d 881, 889 (9th Cir. 1992). It is not an abuse

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of discretion to refuse to consider new arguments in a Rule 60(b) motion even though “dire

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consequences” might result. Schanen v. United States Dept. of Justice, 762 F.2d 805, 807-08 (9th

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Cir. 1985). Moreover, motions for reconsideration are not justified on the basis of new evidence

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which could have been discovered prior to the court’s ruling. Hagerman v. Yukon Energy Corp., 839

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F.3d 407, 413-14 (8th Cir. 1988); see also E.E.O.C. v. Foothills Title, 956 F.2d 277 (10th Cir. 1992).

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A “habeas petitioner may move for relief from the denial of habeas under Rule 60(b) so long

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as the motion is not the equivalent of a successive petition.” Harvest v. Castro, 531 F.3d 737, 745

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(9th Cir. 2008) (citing Gonzales v. Crosby, 545 U.S. 524, 535-36 (2005)). Mere disagreement with

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an order is an insufficient basis for reconsideration. Nor should reconsideration be used to make new

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arguments or ask the Court to rethink its analysis. See N.W. Acceptance Corp. v. Lynnwood Equip.,

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Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

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In the instant case, petitioner’s Rule 60(b) motion is largely a restatement of arguments

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previously made in his traverse. In much of petitioner’s argument, he attempts to mischaracterize

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testimony given at trial. Petitioner claims that this Court incorrectly analyzed certain claims of the

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petition. Petitioner largely expresses his disagreement with the result reached by the Court, that is,

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the ultimate denial of his habeas petition. In making his arguments, petitioner ignores the deferential

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standard involved in a federal court’s review of a petition filed pursuant to 28 U.S.C. § 2254. In his

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motion, petitioner has not identified any mistake, new evidence, intervening change in controlling

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law, or other factor that would require altering the Court’s order of August 21, 2013, or the judgment

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in this case. Petitioner has failed to make an adequate showing under Rule 60(b) to justify granting

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his motion for relief from judgment. As such, the motion is denied.
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Petitioner has also filed a request for a certificate of appealability. (ECF No. 332). In order

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to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. §

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2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir.

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2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a

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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a

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certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

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(2000). “The petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In

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order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are

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debatable among jurists of reason; that a court could resolve the issues differently; or that the

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questions are adequate to deserve encouragement to proceed further. Id. No reasonable jurist could

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conclude that this Court’s order of August 21, 2013, was in error. Petitioner is not entitled to a

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certificate of appealability.

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IT IS THEREFORE ORDERED that petitioner’s Rule 60(b) motion for relief from
judgment (ECF No. 328) is DENIED.
IT IS THEREFORE ORDERED that petitioner’s request for a certificate of appealability
(ECF No. 332) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court SHALL SEND a copy of this order
to the United States Court of Appeals for the Ninth Circuit.
Dated this 2nd day of May, 2014.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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