Bennett v. Bennett

Filing 33

ORDER signed by Judge James L. Robart. The Court DENIES Mr. Bennetts tenth 32 Motion for Relief from Judgment and DENIES a certificate of appealability. The Clerk is DIRECTED not to calendar any future motions for relief from judgment filed in this closed case. **4 PAGE(S), PRINT ALL**(Howard Bennett, Prisoner ID: 912236)(MIH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HOWARD S. BENNETT,

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v.

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ORDER

Petitioner,

JASON BENNETT,
Respondent.

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I.

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CASE NO. C24-0272JLR

INTRODUCTION

Before the court is pro se Petitioner Howard S. Bennett’s tenth motion for relief

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from judgment. (Mot. (Dkt. # 32).) Because Respondent Jason Bennett has not been

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served with Mr. Bennett’s petition and has not appeared in this case, the court exercises

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its discretion under Federal Rule of Civil Procedure 1 to decide the motions before the

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noting date. See Fed. R. Civ. P. 1 (directing courts to administer the civil rules “to secure

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the just, speedy, and inexpensive determination of every action and proceeding”). The

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ORDER - 1

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court has considered Mr. Bennett’s 1 motion, the relevant portions of the record, and the

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governing law. Being fully advised, the court DENIES Mr. Bennett’s tenth motion for

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relief from judgment.
II.

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BACKGROUND 2

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The court dismissed Mr. Bennett’s habeas petition and entered final judgment on

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May 29, 2024. (5/29/24 Order (Dkt. # 11); Judgment (Dkt. # 12).) On June 5, 2024, Mr.

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Bennett filed a timely notice of appeal. (NOA (Dkt. # 13).)

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Between June 11, 2024, and June 25, 2024, Mr. Bennett filed seven motions for
relief from judgment. (See Dkt. ## 15-21.) The court denied the motions on July 5,

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2024. (7/5/24 Order (Dkt. # 22).) Mr. Bennett filed a notice of appeal of that order on

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July 11, 2024. (2d NOA (Dkt. # 23).)

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Mr. Bennett filed his eighth and ninth motions for relief from judgment on August

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16, 2024. (See Dkt. ## 28, 29.) The court denied the motions on August 19, 2024.

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(8/19/24 Order (Dkt. # 30).) Mr. Bennett filed a notice of appeal of that order and his

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tenth motion for relief from judgment on August 28, 2024. (3d NOA (Dkt. # 31); Mot.)
III.

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ANALYSIS

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In his motion, Mr. Bennett invokes Federal Rule of Civil Procedure 60(b)(4),

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which the court liberally construes as a motion for relief under Rule 60(b)(1), which

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Because Jason Bennett has not appeared in this action, the court refers to Petitioner
Howard S. Bennett as “Mr. Bennett” throughout this order.
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The court set forth the background of this case in its previous orders denying Mr.
Bennett’s motions for relief from judgment. (7/5/24 Order (Dkt. # 22); 8/19/24 Order (Dkt.
# 30).) Therefore, the court focuses here on the background relevant to the instant motion.
ORDER - 2

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governs relief from judgment for mistakes of law. (Mot. at 1 (citing Fed. R. Civ. P.

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60(b)(4) (enabling a court to grant relief from judgment when the judgment is void))); see

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Inland Concrete Enters., Inc. v. Kraft, 318 F.R.D. 383, 410 (C.D. Cal. 2016) (construing

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a Rule 60(b)(4) motion as a Rule 60(b)(3) motion under the facts of that case because

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“[i]f the court had jurisdiction of the cause and the party, its judgment is not void, but

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only voidable by writ of error” (quoting Ball v. United States, 163 U.S. 662, 669-70

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(1896))). The court denies Mr. Bennett’s motion as untimely.

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Under Rule 60(c)(1), a motion for relief from judgment “must be made within a
reasonable time.” Fed. R. Civ. P. 60(c)(1). A Rule 60(b)(1) motion asserting a mistake

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of law is not “filed ‘within a reasonable time’ unless it was filed within the time for

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taking an appeal” from the judgment. Wolff v. California, 236 F. Supp. 3d 1154, 1163-64

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(C.D. Cal. 2017) (quoting Inland Concrete, 318 F.R.D. at 411, and compiling cases).

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This is because a Rule 60(b)(1) motion is not a substitute for a timely appeal. See Aikens

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v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011). Here, the court entered judgment on May

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29, 2024 (see Judgment), but Mr. Bennett did not file the instant motion for relief from

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judgment until August 28, 2024 (see Mot.). Accordingly, the court concludes that Mr.

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Bennett’s motion is untimely and must be denied for that reason.

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Even if the motion were timely, the court would nevertheless deny it. Mr. Bennett

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asserts that the court erred by “interpret[ing] and recharacteriz[ing]” his 28 U.S.C. § 2241

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habeas petition as a 28 U.S.C. § 2254 petition, and asserts that by doing so the court

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suspended his right of habeas corpus. (See Mot. at 2.) The court has already addressed

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Mr. Bennett’s objection to the recharacterization of his petition twice in this litigation and
ORDER - 3

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twice concluded that the recharacterization of the petition was appropriate. (5/29/24

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Order at 4; 7/5/24 Order at 6.) Mr. Bennett’s appeal is thus the appropriate vehicle for

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challenging the court’s ruling.

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Finally, the court denies a certificate of appealability. A certificate of

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appealability “should only issue for [an] appeal arising from the denial of a Rule 60(b)

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motion in a [habeas] proceeding if the movant shows that (1) jurists of reason would find

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it debatable whether the district court abused its discretion in denying the Rule 60(b)

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motion and (2) jurists of reason would find it debatable whether the underlying [habeas]

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motion states a valid claim of the denial of a constitutional right.” United States v.

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Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015)). Mr. Bennett has made neither showing.

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Accordingly, the court denies a certificate of appealability
IV.

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CONCLUSION

For the foregoing reasons, the court DENIES Mr. Bennett’s tenth motion for relief

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from judgment (Dkt. # 32) and DENIES a certificate of appealability. The Clerk is

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DIRECTED not to calendar any future motions for relief from judgment filed in this

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closed case.

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Dated this 29th day of August, 2024.

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A
JAMES L. ROBART
United States District Judge

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ORDER - 4