Summers v. McDaniels et al

Filing 43

ORDERED that petitioner's motion for relief from judgment pursuant to FRCP Rule 60(b) (ECF No. 42 ) is DENIED. Signed by Judge Larry R. Hicks on 8/1/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

CHARLES ANTHONY SUMMERS,

10
11
12

Case No. 3:09-cv-00674-LRH-RAM

Petitioner, ORDER
v.
E.K. MCDANIELS, et al.,
Respondents.

13
14

On November 18, 2010, this court granted respondents’ motion to dismiss certain

15

grounds of petitioner Charles Anthony Summers’ pro se petition for writ of habeas

16

corpus pursuant to 28 U.S.C. § 2254 (ECF No. 15). The court dismissed ground 2 of

17

the petition as unexhausted. Id. On December 16, 2010, Summers filed a motion to

18

abandon ground 2 (ECF No. 17), which the court granted on December 28, 2010 (ECF

19

No. 18). On May 19, 2011, the court denied the remaining grounds in the petition, and

20

judgment was entered (ECF Nos. 25 and 26). Summers appealed to the Ninth Circuit

21

Court of Appeals, the Ninth Circuit appointed counsel for Summers, and on May 15,

22

2014, the Ninth Circuit affirmed the denial of the petition (ECF Nos. 32, 34, 35). The

23

United States Supreme Court denied the petition for a writ of certiorari on November 10,

24

2014 (ECF No. 41).

25

On July 7, 2016, nearly two years after the denial of certiorari, Summers filed

26

what he has styled a Rule 60(b) motion for relief from judgment (ECF No. 42).

27
28
1

1

However, he argues that this court should reconsider its November 2010 order

2

dismissing ground two of the petition for failure to exhaust.

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

civil case. Id. at 532.

15

Summers does not assert some defect in the integrity of the federal habeas

16

proceedings. Instead, nearly six years later, he essentially seeks reconsideration of the

17

dismissal of ground 2, though he never sought reconsideration before the resolution of

18

the remaining grounds on the merits. Moreover, Summers presents no new factual

19

allegations whatsoever to challenge this court’s determination that he never presented

20

federal ground 2 as a federal constitutional claim to the Nevada Supreme Court. This

21

motion is meritless and is denied.

22
23

IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment
pursuant to FRCP Rule 60(b) (ECF No. 42) is DENIED.

24
25

DATED this 1st day of August, 2016.

26
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

27
28
2