O'Keefe v. LeGrand

Filing 154

ORDERED that the motion to alter or amend a judgment (ECF No. 152 ) and motion for default judgment (ECF No. 153 ) are DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 5/9/2022. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:14-cv-00477-RCJ-CLB Document 154 Filed 05/09/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 BRIAN KERRY O’KEEFE,
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Petitioner

Case No. 3:14-cv-00477-RCJ-CLB
Order

5 v.
6 BRIAN E. WILLIAMS, et al.,
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Respondents.

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This court denied Brian Kerry O’Keefe’s habeas corpus petition on October 16, 2019, and

10 judgment was entered. (ECF Nos. 131, 132.) O’Keefe appealed, and the Ninth Circuit Court of
11 Appeals denied a certificate of appealability. (ECF Nos. 133, 136, 137.) O’Keefe moved for relief
12 from the judgment under Fed. R. Civ. P. 60(b) on October 7, 2020. (ECF No. 138.) This court
13 denied the motion. (ECF No. 146.) O’Keefe again moved for relief from the judgment under Fed.
14 R. Civ. P. 60(b) on August 30, 2021. (ECF Nos. 148, 149.) This court denied the motion on January
15 14, 2022. (ECF No. 151.) O’Keefe now moves (1) to alter or amend this court’s January 14, 2022,
16 order, and (2) for a default judgment under Fed. R. Civ. P. 55(a) because the respondents failed to
17 respond to his motion to alter or amend this court’s order. (ECF Nos. 152, 153.)
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First, regarding the latter motion, on April 29, 2021, this court granted the respondents’

19 motion to be relieved from responding to O’Keefe’s pleadings unless a response is directed by this
20 court. (ECF No. 146 at 3-4.) This court did not direct a response to O’Keefe’s motion to alter or
21 amend this court’s January 14, 2022, order. As such, O’Keefe’s motion for a default judgment is
22 denied.
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Case 3:14-cv-00477-RCJ-CLB Document 154 Filed 05/09/22 Page 2 of 2

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Second, regarding the former motion, O’Keefe argues that this court should reconsider its

2 January 14, 2022, order in light of Borden v. United States or, at least, grant a certificate of
3 appealability. (ECF No. 152 at 8.) As a reminder, O’Keefe previously alleged that a new rule of
4 constitutional law was established in Borden, which applies retroactively and relates back to
5 grounds 3, 4, and 5 of his petition. (ECF No. 149 at 1.) This court was not convinced that O’Keefe’s
6 motion was a legitimate Fed. R. Civ. P. 60(b) motion; instead, it appeared to be a second or
7 successive habeas corpus petition, which is proscribed under AEDPA. And even if O’Keefe’s
8 motion was a legitimate Fed. R. Civ. P. 60(b)(6) motion, O’Keefe failed to demonstrate that
9 Borden was applicable. See Borden v. United States, 141 S.Ct. 1817, 1821-22 (2021) (holding that
10 a reckless offense cannot qualify as a “violent felony” under the Armed Career Criminal Act, 18
11 U.S.C. § 924(e)). This court declines to reconsider its January 14, 2022, order, or grant a certificate
12 of appealability.
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IT IS THEREFORE ORDERED that the motion to alter or amend a judgment [ECF No.

14 152] and motion for default judgment [ECF No. 153] are DENIED.
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IT IS FURTHER ORDERED that, because reasonable jurists would not find this decision

16 to be debatable or wrong, a certificate of appealability is DENIED.
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DATED: May 9, 2022.
ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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