Mitchell v. Baca et al

Filing 46

ORDER denying ECF No. 40 Motion for District Judge to Reconsider Order; denying ECF No. 39 Motion for Order to Conduct Inquiry; granting ECF Nos. 42 and 45 Motion to Extend Time. Response to ECF No. 32 Order due by 12/15/2017. Signed by Judge Larry R. Hicks on 11/15/2017. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

WILLIAM MITCHELL,

10
11
12
13
14

Case No. 3:16-cv-00384-LRH-WGC
Petitioner, ORDER

v.
BACA, et al.,
Respondents.
This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is

15

before the court on petitioner William Mitchell’s motion for reconsideration of this court’s

16

order granting respondents’ motion to dismiss in part and denying leave to amend the

17

petition (ECF No. 40). Respondents opposed (ECF No. 43).

18

On August 16, 2017, this court granted respondents’ motion to dismiss in part,

19

concluding that several portions of ground 1 were unexhausted and dismissing ground 2

20

for failure to state a claim for which federal habeas relief may be granted (ECF No. 32).

21

In that order, the court also denied Mitchell leave to file an amended petition. He had

22

sought leave to amend to add a third ground asserting a claim of ineffective assistance

23

of state postconviction counsel. The court denied leave to amend as futile because

24

such a claim is noncognizable in federal habeas corpus.

25

On September 28, 2017, Mitchell filed a motion for reconsideration of that order

26

(ECF No. 40). Where a ruling has resulted in final judgment or order, a motion for

27

reconsideration may be construed either as a motion to alter or amend judgment pursuant

28

to Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment pursuant
1

1

to Federal Rule 60(b). School Dist. No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255,

2

1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994).

3
4
5
6
7
8
9
10
11
12

Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or
order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct
of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should
have prospective application; or (6) any other
reason justifying relief from the operation of the
judgment.

13

Motions to reconsider are generally left to the discretion of the trial court. See Combs v.

14

Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a

15

motion to reconsider, a party must set forth facts or law of a strongly convincing nature

16

to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of

17

Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on

18

other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal Rules of Civil

19

Procedure provides that any “motion to alter or amend a judgment shall be filed no later

20

than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P.

21

59(e) “should not be granted, absent highly unusual circumstances, unless the district

22

court is presented with newly discovered evidence, committed clear error, or if there is

23

an intervening change in the controlling law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th

24

Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999).

25

Mitchell argues that this court misunderstood the claim that he sought to add to

26

his petition (ECF No. 40). He is incorrect; he sought to add a claim that his state

27

postconviction counsel was ineffective for failing to raise the issue that his trial counsel

28

“suborned perjury” (see ECF No. 28-1, pp. 11-12). As the court explained, a claim of
2

1

ineffective assistance of state postconviction counsel is not cognizable in federal

2

habeas corpus. Mitchell now argues that he intended to also add a claim that trial

3

counsel suborned perjury. The basis of this claim is Mitchell’s allegation that trial

4

counsel knew Mitchell was under the influence of medication and incapable of

5

knowingly, intelligently and voluntarily entering into the guilty plea agreement, but trial

6

counsel allowed Mitchell to indicate to the court that he was proceeding knowingly,

7

intelligently and voluntarily. The gravamen of this claim is that trial counsel was

8

ineffective because he knew that Mitchell was under the influence of medication at the

9

time and did not knowingly and voluntarily enter his guilty plea. This claim is already

10

before the court as ground 1(d) and shall be considered on the merits (see ECF No. 32,

11

pp. 4-5).

12

Accordingly, Mitchell has failed to make an adequate showing under either Rule

13

60(b) or 59(e) that this court’s order denying him leave to amend his petition and

14

granting the motion to dismiss some grounds should be reversed.

15

The court shall grant petitioner an additional thirty (30) days to comply with this

16

court’s earlier order by (1) informing this court in a sworn declaration that he wishes to

17

formally and forever abandon the unexhausted grounds for relief in his federal habeas

18

petition and proceed on the exhausted grounds; OR (2) informing this court in a sworn

19

declaration that he wishes to dismiss this petition without prejudice in order to return to

20

state court to exhaust his unexhausted claims; OR (3) filing a motion for a stay and

21

abeyance, asking this court to hold his exhausted claims in abeyance while he returns

22

to state court to exhaust his unexhausted claims. Id.

23
24
25
26

IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF
No. 40) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for order to conduct inquiry
into subornation of perjury (ECF No. 39) is DENIED.

27

IT IS FURTHER ORDERED that petitioner’s first and second motions for

28

extension of time to respond to this court’s order dated August 16, 2017 (ECF Nos. 42,
3

1

45) are both GRANTED. Petitioner shall file his response within thirty (30) days of the

2

date of this order.

3
4

DATED this 15th day of November, 2017.

5
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4