(HC) Johnson v. Salazar, No. 2:2017cv01310 - Document 59 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/16/2018 RECOMMENDING petitioner's 52 motion to set aside judgment be denied; any further filings by petitioner in this closed case be disregarded; and a certificate of appealability be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE D. JOHNSON, 12 13 14 15 No. 2:17-cv-1310 JAM KJN P Petitioner, v. FINDINGS AND RECOMMENDATIONS J. SALAZAR, Respondent. 16 17 Petitioner, a federal prisoner proceeding without counsel, filed this application for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2241, in which he challenged the validity and 19 constitutionality of the sentence imposed by the Western District of Washington. This action was 20 dismissed on March 19, 2018, and judgment was entered. (ECF No. 21, adopting ECF No. 16.) 21 On July 9, 2018, petitioner filed his seventh motion for relief from judgment under Rule 60(b) of 22 the Federal Rules of Civil Procedure. Petitioner’s prior 60(b) motions were denied on June 6, 23 2018. (ECF No. 47, adopting ECF No. 37.) As discussed below, the undersigned recommends 24 that petitioner’s seventh motion be denied, and that any further filing by petitioner in this closed 25 case be disregarded. 26 Petitioner’s Appeals 27 On August 6, 2018, the United States Court of Appeals for the Ninth Circuit addressed 28 petitioner’s appeals, as follows: 1 These related appeals are from the denial of appellant’s disguised 28 U.S.C. § 2255 motion and subsequent Federal Rule of Civil Procedure 59(e) motion. The requests for a certificate of appealability (Docket Entry Nos. 2 and 6 in No. 18-15508, and Docket Entry No. 2 in No. 18-16107) are denied because appellant has not shown that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015), cert. denied, 136 S. Ct. 2462 (2016); Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order). Any pending motions are denied as moot. DENIED. 1 2 3 4 5 6 7 8 9 10 (ECF No. 57.) Thus, no appeals remain pending at the present time. 11 Rule 60(b) Motion 12 Under Rule 60(b), a party may seek relief from judgment in limited circumstances. 13 Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) applies to habeas proceedings, but 14 only in conformity with the Antiterrorism and Effective Death Penalty Act (“AEDPA”), including 15 the limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez, 545 U.S. at 16 529. A purported Rule 60(b) motion seeking to reopen the judgment of an initial habeas petition 17 brought pursuant to 28 U.S.C. §§ 2254 or 2255 is in essence a successive petition, under 28 18 U.S.C. § 2244(b) where it “seeks to add a new ground for relief,” or “if it attacks the federal 19 court’s previous resolution of a claim on the merits . . . .” Gonzalez, 545 U.S. at 532. 20 Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest 21 injustice and is to be utilized only where extraordinary circumstances” exist. Harvest v. Castro, 22 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing 23 reconsideration under Rule 60(b)(1) - (5)). Reconsideration is not appropriate when a movant 24 relies on arguments previously raised; that is, a motion for reconsideration is not a vehicle 25 permitting the unsuccessful party to reiterate arguments previously presented. See Maraziti v. 26 Thorpe, 52 F.3d 252, 255 (9th Cir. 1995) (district court properly denied Rule 60(b)(6) motion 27 because movant “merely reiterated the arguments that he had already presented to the district 28 court”). 2 1 Here, petitioner claims that his motion should not be construed as a second or successive 2 habeas application because his motion is based on the ground of mistake under Rule 60(b)(1), 3 which by its terms does not affect the “finality of the judgment or suspend its operation,” quoting 4 Smith v. Stone, 308 F.2d 15, 17-18 (9th Cir. 1962).1 (ECF No. 52 at 1.) Petitioner contends that 5 this court was required to apply the Chevron2 deference doctrine in evaluating his claim, that the 6 failure to do so was an error of law requiring correction, and such error constitutes a “mistake” 7 under Rule 60(b)(1). (ECF No. 52 at 2.) The undersigned is not persuaded. Petitioner’s motion is nothing more than another 8 9 transparent attempt to attack the final decision of the district court.3 Thus, petitioner’s motion is 10 construed as a successive petition. Under Ninth Circuit Rule 22-3, “[i]f an unauthorized second 11 or successive section 2254 petition or section 2255 motion is submitted to the district court, the 12 district court may, in the interests of justice, refer it to the Court of Appeals.” Id. (emphasis 13 added). The undersigned does not find that the interests of justice warrants transfer of the motion 14 to the court of appeals. Rather, the undersigned recommends dismissal of the motion. This court 15 does not have jurisdiction to consider the successive petition without prior authorization by the 16 Ninth Circuit. Petitioner must obtain authorization from the Ninth Circuit Court of Appeals 17 before he can proceed with a second or successive petition. 28 U.S.C. § 2244(b)(3). 18 No Response to Further Filings by Petitioner 19 Judgment was entered in this action on March 19, 2018. Petitioner’s appeals have been 20 addressed by the appellate court. (ECF No. 57.) Petitioner has unsuccessfully sought to set aside 21 the judgment on several occasions, and the undersigned recommends that his last motion be 22 1 24 In Smith, the Ninth Circuit found that the district court has discretion to find whether there exists a sufficient showing of inadvertence or excusable neglect, and held there was no abuse of discretion in the district court’s refusal to reopen the case. Id. 25 2 26 3 23 27 28 Chevron v. N.R.D.C., 467 U.S. 837 (1984). Indeed, this is not the first time that petitioner has argued that Chevron deference should apply. Petitioner raised Chevron deference in his petition for writ of certiorari before the Supreme Court. (ECF No. 1 at 3.) Petitioner also argued Chevron deference in at least two of his prior motions for relief under Rule 60(b). (ECF Nos. 26 at 1; 29 at 3-4; 6.) 3 1 denied. Based on this record, the undersigned recommends that any further filing by petitioner, 2 aside from his objections to the instant findings and recommendations, be disregarded in this 3 closed case. 4 Request for Certificate of Appealability 5 In the event petitioner chooses to appeal an order adopting these findings and 6 recommendations, the undersigned recommends the district court deny a certificate of 7 appealability. 8 Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only when the 9 petitioner “has made a substantial showing of the denial of a constitutional right.” Id. With 10 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists 11 would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 12 v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 13 (1983)). For procedural rulings, a certificate will issue only if reasonable jurists could debate (1) 14 whether the petition states a valid claim of the denial of a constitutional right and (2) whether the 15 court’s procedural ruling was correct. Id. The issue of whether petitioner’s Rule 60(b) motion should be treated as a successive 16 17 petition under Gonzalez v. Crosby is not debatable among reasonable jurists and, therefore, does 18 not warrant the issuance of a certificate of appealability. 19 Conclusion 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. Petitioner’s motion to set aside judgment (ECF No. 52) be denied; 22 2. Any further filings by petitioner in this closed case be disregarded; and 23 3. A certificate of appealability be DENIED. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 //// 4 1 “Objections to Magistrate Judge’s Findings and Recommendations.” 4 If petitioner files 2 objections, he shall also address whether a certificate of appealability should issue and, if so, why 3 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 4 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 5 § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 6 service of the objections. The parties are advised that failure to file objections within the 7 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 8 F.2d 1153 (9th Cir. 1991). 9 Dated: August 16, 2018 10 11 12 13 /john1310.60b1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Petitioner previously filed five different objections to the May 4, 2018 findings and recommendations. Petitioner is cautioned that each party may file one set of objections. Therefore, if petitioner chooses to file objections, he must include all of his objections in one document. If petitioner again files multiple objections, the court will only consider the objections he files first. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.