Yazzie v. United States of America

Filing 47

Proposed Findings and Recommended Disposition by Chief Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 44 Mr. Yazzie's Motion to Reconsider be DENIED and 46 Mr. Yazzie's Motion for Mandamus be DENIED AS MOOT as outlined in t he PF&RD. Objections to the PF&RD due by 2/4/2022. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ke)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.

No. CR 10-01761 JB
No. CV 14-00894 JB/CG

WILLIS J. YAZZIE,
Defendant/Movant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendant Willis Yazzie’s Letter to the
Court, (Doc. 42), filed September 9, 2021; his Motion Pursuant to Rule 60(b)(6) Federal
Rules of Civil Procedure (the “Motion to Reconsider”), (Doc. 44), filed October 4, 2021;
his Letter to District Judge James O. Browning, (Doc. 45), filed November 3, 2021; and
his Motion for Writ of Mandamus (the “Motion for Mandamus”), (Doc. 46), filed
December 1, 2021. Respondent has filed no response to the two letters or the two
motions, and the time for doing so has now passed. See D.N.M.LR-Civ. 7.4(a) (“A
response must be served and filed within fourteen (14) calendar days after service of
the motion.”).
This matter was assigned to the undersigned on October 3, 2014, and on
October 6, 2014, United States District Judge James O. Browning referred this case to
the undersigned to perform legal analysis and recommend an ultimate disposition. (Doc.
2). After considering Mr. Yazzie’s filings, the record, and the relevant law, the Court
RECOMMENDS that the Motion to Reconsider be DENIED and the Motion for
Mandamus be DENIED AS MOOT.

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Mr. Yazzie is currently incarcerated at the Federal Correctional Institute (“FCI”) in
Anthony, Texas, as a result of his 2011 guilty plea to aggravated sexual abuse. (Doc. 23
at 2); (Doc. 46 at 2). He was previously incarcerated at the FCI in Big Spring, Texas.
(Doc. 23 at 2). In 2014, Mr. Yazzie filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody (the “§ 2255 motion”), (Doc.
9), arguing ineffective assistance of counsel. Specifically, he argued that his counsel
failed to seek suppression of his statement under the Fourth Amendment, and that this
failure caused Mr. Yazzie to enter into a “harsh” plea agreement. (Doc. 9 at 4). United
States District Judge James O. Browning denied Mr. Yazzie's § 2255 motion on October
31, 2015, (Doc. 23), which decision Mr. Yazzie then unsuccessfully appealed, (Doc. 31).
Mr. Yazzie now seeks reconsideration of that denial. (Doc. 44); (Doc. 46). In his
Motion to Reconsider, filed October 4, 2021, Mr. Yazzie argues that the Court erred in
relying on the legal opinions of his attorney, James Loonam, and the second attorney
with whom he consulted, Susan Dunleavy, in rendering its decision on his § 2255
motion. See (Doc. 44). Mr. Yazzie contends there has been an “extraordinary . . . defect
in the integrity of the habeas court, where the . . . court relied on Attorney James
Loonam and Ms. Dunleavy” such that “petitioner’s Motion to Suppress Statement was
already decided by the two attorneys." Id. at 1.
Mr. Yazzie again argues that if his attorney had filed a motion to suppress his
statement, he would not have entered a “harsh plea agreement” and would instead
either have gone to trial or entered into a more favorable plea agreement. Id. at 2. Mr.
Yazzie states that in his § 2255 motion he alleged that his statement should have been
suppressed under the Fourth Amendment, as opposed to 18 U.S.C. § 3501(c), which he

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states is what his attorneys had previously considered. Id. at 3. Mr. Yazzie complains
that in response to his § 2255 motion, the government argued that “petitioner did not
receive ineffective assistance of counsel because Attorney James Loonam and Ms.
Dunleavy had confirmed that there was no legal basis for a motion to suppress,” and
then “the magistrate judge said that the motion, files, and record shows that petition is
not entitled to any relief,” relying on “the same argument as the government.” Id. at 2.
Mr. Yazzie further states that “[r]elying on a previous motion to suppress statement to
deny the § 2255 motion poisons the public confidence in the judicial process” and “thus
injures not just the defendant, but the law as an institution and invites the risk of
injustice to other litigants in a future case.” Id. at 4. He urges that the Court “make the
determination based on the 4th amendment violation and not the Attorneys’ previous
argument.” Id. at 4. For these reasons, he asks that the judgment in this case be set
aside. Id. at 1.
In Mr. Yazzie's Letter to the Court, he explains that his delay in filing the instant
Motion for Reconsideration is due, in part, to a prison transfer which temporarily
separated him from his possessions. (Doc. 42 at 1). In his Letter to District Judge James
O. Browning, he alleges his innocence in the underlying criminal case and gives some
factual details, including a conversation he had with his attorney about his confession.
(Doc. 45 at 1-2). The Court construes these filings as addenda to his Motion to
Reconsider. Finally, Mr. Yazzie’s Motion for Mandamus seeks to compel the Court to
issue a ruling on his Motion to Reconsider. (Doc. 46 at 1).
Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct

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clear error or prevent manifest injustice. Brumark Corp. v. Samson Resources Corp., 57
F.3d 941, 948 (10th Cir.1995). A motion for reconsideration is proper where the court
has clearly misapprehended the facts, a party's position, or the controlling law, but is not
appropriate to revisit issues already addressed in prior filings. See Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir.1991); Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Generally, “[a] motion under Rule 60(b) must be made
within a reasonable time . . . no more than a year after the entry of the judgment or
order or the date of the proceeding.” FED. R. CIV. P. 60(c). For the reasons listed under
Rule 60(b)(1)-(3), this deadline may not be extended and is not subject to the court's
discretion. Id.; see also FED. R. CIV. P. 6(b)(2). However, no time limit applies to Rule
60(b)(6), other than that the motion be made within a reasonable time. See FED. R. CIV.
P. 60(c)(1); see also Jones v. Azar, 19-cv-477 JB/JHR, 2020 WL 4569442, at *8
(D.N.M. Aug. 8, 2020).
Here, Mr. Yazzie indicates that his Motion to Reconsider is brought under Rule
60(b)(6), for which “any other reason that justifies relief” is the grounds for
reconsideration. (Doc. 44 at 1). As such, his Motion to Reconsider is exempt from the
strict one-year deadline. Nevertheless, he was required to file it within a reasonable
time. The Court finds that, even under that more liberal timeframe, his Motion to
Reconsider is unreasonably untimely. He filed it almost six years after United States
District Judge James O. Browning issued his decision denying the § 2255 motion. See
(Doc. 23); (Doc. 44). To the extent that Mr. Yazzie’s transfer between prison facilities
may have caused a delay, such a transfer does not justify a six-year delay. The Motion
to Reconsider is therefore barred. FED. R. CIV. P. 60(c)(1).

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The Court therefore RECOMMENDS Mr. Yazzie’s Motion Pursuant to Rule
60(b)(6) Federal Rules of Civil Procedure, (Doc. 44), be DENIED, and his Motion for
Writ of Mandamus, (Doc. 46), be DENIED AS MOOT.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed, no
appellate review will be allowed.

________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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