Braunstein v. Cox et al

Filing 75

ORDER denying ECF No. 74 Motion for District Judge to Reconsider Order; petition is DENIED A CERTIFICATE OF APPEALABILITY as to any issues raised int he motion denied herein. petitioner shall file no further documents in this closed action; any further documents filed by petitioner in this action shall be stricken and petitioner will be subject to the imposition of sanctions. Signed by Judge Larry R. Hicks on 07/14/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVEN BRAUNSTEIN,

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Petitioner,

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vs.

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JAMES COX, et al.,

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Case No. 3:11-cv-00587-LRH-WGC

Respondents.

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. Before the Court is petitioner’s most recent motion for

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reconsideration filed June 23, 2017. (ECF No. 74).

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On August 22, 2012, this Court dismissed the petition with prejudice on the ground that all

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claims were procedurally defaulted. (Id.). This Court denied petitioner a certificate of appealability.

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(Id.). Judgment was entered on August 22, 2012. (ECF No. 38). Petitioner appealed this Court’s

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order and judgment. (ECF No. 39). On October 3, 2012, the Ninth Circuit Court of Appeals denied

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petitioner’s request for a certificate of appealability and dismissed the appeal. (ECF No. 43).

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Petitioner filed a petition for a writ of certiorari, and on January 22, 2013, the United States

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Supreme Court denied the petition. (ECF No. 46).

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Petitioner has previously filed at least 15 separate motions seeking reconsideration and other

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post-judgment relief. (ECF Nos. 47, 48, 51, 53, 55, 57, 59, 62, 63, 64, 65, 66, 69, 70, 72). By order

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filed March 17, 2017, the Court denied petitioner’s motions for reconsideration and post-judgment

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relief. (ECF No. 73). The Court further directed petitioner to refrain from filing additional

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frivolous post-judgment motions. (Id.).

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On June 23, 2017, petitioner filed a motion for reconsideration pursuant to Rule 60(b),

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claiming “fraud.” Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment

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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 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.

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A motion under Rule 60(b) “must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1).

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Relief based on mistake, newly discovered evidence, or fraud must be sought within one year of

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final judgment. Fed. R. Civ. P. 60(c)(1).

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Petitioner’s present motion repeats arguments that this Court lacked jurisdiction to rule on

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his federal habeas petition. This Court has repeatedly rejected petitioner’s assertions of fraud and

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lack of jurisdiction in prior orders. Petitioner’s motion for reconsideration is denied. Additionally,

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as discussed in the Court’s order of March 17, 2017, petitioner’s repeated filing of frivolous and

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duplicative post-judgment motions leads this Court to find that petitioner’s actions are a malicious

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abuse of the writ process. The Court directs petitioner to file no further documents in this closed

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case. Any further documents filed by petitioner in this case shall be stricken and petitioner will be

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subject to the imposition of sanctions.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 74)
is DENIED.

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IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY as to any issues raised in the motion denied herein.

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IT IS FURTHER ORDERED that petitioner shall file no further documents in this

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closed action.

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IT IS FURTHER ORDERED that any further documents filed by petitioner in this
action shall be stricken and petitioner will be subject to the imposition of sanctions.

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DATED this 14th day of July, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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