Yaag v. LeGrand et al

Filing 102

ORDER - It is therefore ordered that Petitioner Donald Steven Yaag's Motion for Rule 60(b)(6) Review (ECF No. 94 ) is denied.It is further ordered that Petitioner's Motion for Status (ECF No. 99 ) is denied as moot. It is further ordered that Petitioner's Motion for Appointment of Counsel (ECF No. 101 ) is denied.It is further ordered that a certificate of appealability is denied because reasonable jurists would not find the Court's reasoning debatable or wrong. Signed by Chief Judge Miranda M. Du on 9/5/2023. (Copies have been distributed pursuant to the NEF - DLS)

Case 3:14-cv-00295-MMD-CLB Document 102 Filed 09/05/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DONALD STEVEN YAAG,

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v.

Petitioner,

ORDER

RENEE BAKER, et al.,
Respondents.

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Case No. 3:14-cv-00295-MMD-WGC

I.

SUMMARY

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This closed habeas matter is before the Court on Petitioner Donald Steven Yaag’s

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Motion for Rule 60(b)(6) Review (ECF No. 94), Motion for Status (ECF No. 99), and Motion

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for Appointment of Counsel (ECF No. 101). As further explained below, the Court will deny

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these motions.

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II.

BACKGROUND

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Yaag initiated this case on June 6, 2014, by filing a petition for writ of habeas corpus

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under 28 U.S.C. § 2254 challenging a 2009 conviction and sentence imposed by the Eighth

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Judicial District Court for Clark County. (ECF No. 1.) Yaag filed a counseled second

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amended petition (ECF No. 48) in August 2017, and Respondents moved to dismiss the

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second amended petition as untimely, unexhausted, procedurally defaulted, or non-

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cognizable. (ECF No. 55.) Yaag responded and also requested a stay and abeyance

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pending the exhaustion of remedies in state court. (ECF Nos. 60, 61.) The Court granted

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his request and denied the dismissal motion without prejudice. (ECF No. 66.)

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In October 2017, Yaag filed a second state petition for writ of habeas corpus. The

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state court denied the second state petition as time-barred and successive. (ECF No. 68-

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8.) The state court found that Yaag’s actual innocence claim failed to establish good cause

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to overcome Nevada’s procedural bars. (Id. at 8.) In October 2019, the Court granted
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Case 3:14-cv-00295-MMD-CLB Document 102 Filed 09/05/23 Page 2 of 4

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Yaag’s unopposed request to reopen this case. (ECF No. 67.) Respondents filed a motion

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to dismiss the second amended petition, and the Court dismissed the petition on October

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2, 2020, finding Claims A, B(2), and C untimely and Claims B(1), B(2), C, and D

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procedurally defaulted. (ECF No. 78.) The Clerk of Court entered judgment. (ECF No. 79.)

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Yaag appealed the order denying petition and judgment entered to the United States

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Court of Appeals for the Ninth Circuit. (ECF No. 80.) The Ninth Circuit denied Yaag’s

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request for a certificate of appealability. (ECF No. 82.) The Ninth Circuit granted Yaag’s

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counsel’s request to be relieved as counsel of record and Yaag proceeded pro se before

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the Ninth Circuit. (ECF No. 87.) The Ninth Circuit denied Yaag’s motion for reconsideration

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and motion for reconsideration en banc. (ECF No. 89.) The United States Supreme Court

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denied Yaag’s petition for writ of certiorari and petition for rehearing. (ECF Nos. 91, 93.)

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III.

DISCUSSION

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A.

Motion for Rule 60(b)(6) Review

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A motion made under Rule 60(b)(6) must be made within a “reasonable time.” Fed.

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R. Civ. P. 60(c)(1). Relief based on mistake, newly discovered evidence, or fraud must be

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sought within one year of final judgment. See id.

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“Rule 60(b)(6) permits reopening for ‘any . . . reason that justifies relief’ other than

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the more specific reasons set out in Rule 60(b)(1)-(5).” Wood v. Ryan, 759 F.3d 1117,

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1119-20 (9th Cir. 2014) (quoting Fed. R. Civ. P. 60(b)(6)). Under Rule 60(b)(6),

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“extraordinary circumstances” are required to justify the reopening of a final judgment.

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Gonzalez v. Crosby, 545 U.S. 524, 535 (2005); Riley v. Filson, 933 F.3d 1068, 1071 (9th

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Cir. 2019); see also Ackermann v. United States, 340 U.S. 193, 199 (1950); Wood, 759

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F.3d at 1120. However, “[s]uch circumstances ‘rarely occur in the habeas context’.” Wood,

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759 F.3d at 1120 (quoting Gonzalez, 545 U.S. at 535); see also Hall v. Haws, 861 F.3d

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977, 984 (9th Cir. 2017) (noting that “AEDPA poses significant hurdles for a Rule 60(b)

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petitioner”). A party who seeks relief under Rule 60(b)(6) typically “must demonstrate both

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injury and circumstances beyond his control” that prevented them from properly pursuing

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their case. Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002).

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First, the Court notes that Yaag’s motion was not brought within a reasonable time.

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The Court entered its order granting Respondents’ motion to dismiss and judgment on

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October 2, 2020. (ECF Nos. 78, 79.) Yaag filed his motion for reconsideration two years

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later on November 15, 2022. (ECF No. 94.) Although Yaag’s motion for reconsideration

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could be denied on the basis of its untimeliness, the Court nonetheless denies relief under

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Rule 60(b)(6) because Yaag fails to demonstrate extraordinary circumstances.

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Yaag asserts he is entitled to relief because of the holding in In re Jackson, 12 F.4th

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604 (6th Cir. 2021), wherein the Sixth Circuit granted the petitioner’s motion to file a second

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or successive application for habeas writ because, inter alia, the prosecution withheld

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material and exculpatory evidence. See id. at 3. Yaag fails to make a showing of

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extraordinary circumstances by a change in intervening law. See Hall, 861 F.3d at 987. “A

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dismissal of a petition based on an accurate application of then-settled law—even after the

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Supreme Court overrules such precedent—is ‘hardly extraordinary.’” Bynoe v. Baca, 966

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F.3d 972, 983 (9th Cir. 2020). Yaag does not demonstrate a relationship between any

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purported change in law and the challenged judgment as he is not moving for leave to file

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a second or successive petition.

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Yaag further asserts that the trial court judge, his trial counsel, the prosecution, and

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the federal judge are conspiring together. (ECF No. 94 at 2, 14.) Yaag’s assertions lack

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merit and he fails to demonstrate extraordinary circumstances warranting reconsideration.

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Because Yaag has not demonstrated that he is entitled to relief under Rule 60(b)(6), the

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Court denies his motion for review.

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The Court further denies Yaag’s request for an evidentiary hearing. An evidentiary

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hearing is not warranted when “the record refutes [the petitioner’s] factual allegations or

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otherwise precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

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B.

Motion for Status

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This case has concluded, and the Court has denied Yaag’s motion for

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reconsideration herein. Yaag’s motion for status regarding “prosecuting of the case” is

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denied as moot.

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C.

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Yaag requests appointment of counsel. There is no constitutional right to appointed

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counsel in a federal habeas corpus proceeding. See Luna v. Kernan, 784 F.3d 640, 642

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(9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)). The decision to

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appoint counsel is generally discretionary. See id.; 18 U.S.C. § 3006A(a)(2) (authorizing

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appointment of counsel “when the interests of justice so require”). Here, the case has

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closed, and Yaag has not established that the interests of justice require the appointment

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of counsel. Accordingly, the Court denies his motion.

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IV.

Review (ECF No. 94) is denied.
It is further ordered that Petitioner’s Motion for Status (ECF No. 99) is denied as

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CONCLUSION
It is therefore ordered that Petitioner Donald Steven Yaag’s Motion for Rule 60(b)(6)

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Motion for Appointment of Counsel

moot.
It is further ordered that Petitioner’s Motion for Appointment of Counsel (ECF No.
101) is denied.
It is further ordered that a certificate of appealability is denied because reasonable
jurists would not find the Court’s reasoning debatable or wrong.
DATED THIS 5th Day of September 2023.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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