Rowell v. Palmer et al

Filing 43

ORDER. IT IS ORDERED that the Amended Motion to Set Aside Judgment 41 is DENIED AND DISMISSED as a Second or Successive Petition pursuant to 28:2244(b)(1). Signed by Chief Judge Robert C. Jones on 7/5/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAMARR ROWELL,
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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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____________________________________)

3:10-cv-0044-RCJ-VPC
ORDER

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This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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brought by a Nevada Prisoner. The petition was denied on its merits March 21, 2011 (ECF No. 33).

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Petitioner appealed the decision, and the Ninth Circuit Court of Appeals denied his motions for

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certificate of appealability, for a preliminary injunction, and for an en banc rehearing on April 25,

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2011 (ECF No. 38).

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Petitioner filed a motion to set aside the judgment under Fed.R.Civ.P. 60(b)(3) on the

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basis of fraud (ECF No. 29) to which an opposition was filed (ECF No. 40). An amended motion

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was filed (ECF No. 41) and petitioner replied (ECF No. 42).

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Petitioner alleges that the decision in this matter was obtained through

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misrepresentation and fraud on the court where respondents misrepresented the facts related to the

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procedural context of his case. Petitioner further attempts to reargue his claim that the Nevada

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burglary statute is unconstitutional because it allows for the arbitrary enforcement of the statute.

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A motion made under Fed.R.Civ.P. 60(b) must be treated as a second or success

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habeas corpus application where the basis for the motion to reconsider presents a factual predicate

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that would state a claim for a successive petition under 28 U.S.C. § 2244(b). Thompson v. Calderon,

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151 F.3d 918, 920-21 (9th Cir. 1998). Here, petitioner reargues the merits of his claim attacking the

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constitutionality of the Nevada burglary statute. Such arguments are foreclosed under 28 U.S.C.

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2244(b)(1).1

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The Court construes this motion as a second and successive petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, brought without leave of the Ninth Circuit Court of Appeals.

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28 U.S.C. § 2244(b)(3)(A); Gonzalez v. Crosby, 545 U. S. 524, 529-530 (2005); see also Felker v.

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Turpin, 518 U. S. 651, 656-657, 664 (1996).

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IT IS THEREFORE ORDERED that the Amended Motion to Set Aside Judgment

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(ECF No. 41) is DENIED AND DISMISSED as a Second or Successive Petition pursuant to 28

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U.S.C. § 2244(b)(1).

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DATED: This 5th day of July, 2011.

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Dated this ______ day of June, 2011.

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___________________________________
UNITED STATES DISTRICT JUDGE

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“A claim presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.”
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