Quillar v. People of the State, et al, No. 3:2001cv00968 - Document 85 (S.D. Cal. 2010)

Court Description: ORDER Denying 83 Motion for Relief from Final Judgment. Signed by Judge Barry Ted Moskowitz on 12/6/2010. (All non-registered users served via U.S. Mail Service)(jer)

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Quillar v. People of the State, et al Doc. 85 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEE V. QUILLAR, Case No. 01CV968 BTM (BEN) Petitioner-Defendant, 12 ORDER DENYING MOTION FOR RELIEF FROM FINAL JUDGMENT v. 13 RICK M. HILL, 14 Respondent-Plaintiff. 15 On May 29, 2003, the Court filed an order adopting the Magistrate Judge’s Report and 16 Recommendation that Petitioner’s habeas corpus petition be denied. Petitioner now moves 17 under Fed. R. Civ. P. 60(b)(6) for relief from this judgment. For the reasons that follow, this 18 motion is DENIED. 19 Petitioner’s Rule 60(b)(6) motion is based on Petitioner’s “new discovery” that his trial 20 counsel was disbarred in 2007 for misconduct in two matters, one of which involved the 21 attorney’s failure to competently work on a state habeas corpus petition. (See app. at 28-30) 22 The gravamen of Petitioner’s motion is that his claims for ineffective assistance of counsel 23 and other claims raised in his habeas petition should be reevaluated in light of this 24 disbarment. 25 Defendant’s motion is actually a successive § 2254 motion and the Court shall treat 26 it as such. See Gurry v. McDaniel, 149 Fed. Appx. 593, 596 (9th Cir. 2005) (construing 27 ineffective assistance of counsel argument raised in a Rule 60(b) motion as a successive § 28 2255 petition). A Rule 60(b) motion constitutes a second or successive habeas petition 1 01CV968 BTM (BEN) Dockets.Justia.com 1 under 28 U.S.C. § 2244(b) when it “seeks vindication of” or “advances” one or more “claims.” 2 Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005). A claim is defined as “an asserted federal 3 basis for relief from a state court’s judgment of conviction”; a motion brings a claim “if it 4 attacks the federal court's previous resolution of a claim on the merits.” Id. at 532. “On the 5 merits” refers “to a determination that there exist or do not exist grounds entitling a petitioner 6 to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at n.4. By contrast, a Rule 7 60(b) motion that “challenges only the District Court’s failure to reach the merits [of a habeas 8 claim] does not warrant such treatment, and can therefore be ruled upon by the District Court 9 without precertification by the Court of Appeals pursuant to § 2244(b)(3).” Id. at 538. 10 Here, Petitioner brings the same substantive claims for federal relief that were raised 11 in the habeas petition. The Court reached the merits of each of his claims in the denial of 12 his petition. C.f. Phelps v. Alameida, 569 F.3d 1120, 1132 (9th Cir. 2009) (Rule 60(b)(6) 13 motion not a successive petition where District Court’s denial of habeas petition rested on 14 statute of limitations grounds). Accordingly, Petitioner’s motion, “although labeled a Rule 15 60(b) motion, is in substance a successive habeas petition.” Gonzalez, 545 U.S. at 531. 16 The Court lacks jurisdiction to consider Defendant’s successive § 2254 motion 17 because the successive motion has not been certified by a panel of Ninth Circuit judges as 18 required by 28 U.S.C. § 2244(b). Therefore, Defendant’s successive § 2254 motion is 19 DISMISSED. 20 21 IT IS SO ORDERED. 22 DATED: December 6, 2010 23 24 25 Honorable Barry Ted Moskowitz United States District Judge 26 27 28 2 01CV968 BTM (BEN)

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