Rowell v. Palmer et al

Filing 52

ORDER denying and dismissing 50 Motion to Set Aside, as a second or successive petition pursuant to 28 USC 2244(b)(1). Signed by Judge Robert C. Jones on 9/30/2014. (Copies have been distributed pursuant to the NEF - KR)

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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-00044-RCJ-VPC
ORDER

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On March 21, 2011, the court denied petitioner’s petition for writ of habeas corpus on the merits

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(ECF #33).1 On July 5, 2011, the court denied petitioner’s amended motion to set aside the judgment

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as a second or successive petition (ECF #43). Petitioner filed a notice of appeal, and on September 12,

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2011, the Ninth Circuit Court of Appeals denied petitioner’s request for a certificate of appealability and

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denied all pending motions as moot (ECF #49). Now before the court is another motion to set aside

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judgment, which petitioner filed more than two years later on December 11, 2013 (ECF #50).

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Respondents opposed (ECF #51).

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Federal Rule of Civil Procedure 60 (b) provides that a court may grant relief from final judgment
for the following reasons:

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Petitioner appealed the decision, and the Ninth Circuit Court of Appeals denied his motions for
a certificate of appealability, for a preliminary injunction, and for an en banc rehearing on April 25, 2011
(ECF #38).

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(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);

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

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(4) the judgment is void;

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(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

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(6) any other reason that justifies relief.

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Here, petitioner alleges that “as the court recognized” he has never admitted to committing any

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crime, but only admitted to entering a building open to the public (ECF #50 at 1). He characterizes this

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as a prima facie showing of actual innocence. Id. at 2. As with his earlier motion to set aside judgment,

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petitioner further attempts to reargue his claim that the Nevada burglary statute is unconstitutional

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because it is vague as to what constitutes intent to commit larceny (id.; see also ECF #s 29, 42).

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Once again, where, as here, the factual predicate of a Rule 60(b) motion seeks to reassert a

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ground previously raised and addressed on the merits, it is properly treated as a second or successive

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petition. See Gonzalez v. Crosby, 545 U.S. 524, 534 (2005); Thompson v. Calderon, 151 F.3d 918, 921

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(9th Cir. 1998). Petitioner’s arguments are foreclosed under 28 U.S.C. § 2244(b)(1).2

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The court construes this motion as a second or successive petition for writ of habeas corpus

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

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§ 2244(b)(3)(A); Gonzalez, 545 U.S. at 529-530; see also Felker v. Turpin, 518 U.S. 651, 656-657

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(1996).

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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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IT IS THEREFORE ORDERED that petitioner’s motion to set aside judgment (ECF #50) is
DENIED and DISMISSED as a second or successive petition pursuant to 28 U.S.C. § 2244(b)(1).

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Dated this 30th day of September, 2014.

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UNITED STATES DISTRICT JUDGE
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