United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
District Court has referred this action filed under 28 U.S.C.
§ 2254 to United States Magistrate Judge David W.
Christel. Presently pending before the Court is Petitioner
Jerome Ceasar Alverto's “Motion for Relief from
Judgment or Order (FRCP 60)” (“Motion”).
Dkt. 81. The Court has reviewed the Motion and the relevant
record and finds Petitioner has not shown he is entitled to
relief from judgment in this case. Therefore, the undersigned
recommends the Motion (Dkt. 81) be denied.
filed his federal habeas Petition, seeking relief from his
state court convictions and sentence, on June 19, 2013.
See Dkt. 1. The Court directed service of the
Petition on July 15, 2013. Dkt. 11. Approximately one month
later, on August 12, 2013, Petitioner moved to stay the
proceedings while he exhausted two grounds in the state
courts. Dkt. 18. The Court stayed the entire case pending the
resolution of the state court proceedings. Dkt. 22. The Court
continued the stay several times, over several years.
See Dkt. 25 (extending the stay in October 2013);
Dkt. 29 (extending the stay through August 2014); Dkt. 31
(extending the stay through January 2015); Dkt. 40 (extending
the stay through July 2015); Dkt. 49 (extending the stay
through November 2015). On December 15, 2015, the Court
continued the stay and directed the parties to file status
updates every 90 days. Dkt. 55. The parties filed status
reports throughout 2016 and, on May 26, 2017, Petitioner
filed his last status report, stating his state court
proceedings were still pending. Dkt. 57-63, 65, 67, 69, 70,
August 4, 2017, Petitioner filed a Motion to Lift the Stay
and to Withdraw the Writ of Habeas Corpus without Prejudice
and without Cost (“Motion to Dismiss”). Dkt. 73.
Petitioner requested he be allowed to dismiss his Petition
without prejudice because he had discovered additional due
process violations and needed to exhaust the new claims
before pursuing an actual innocence claim in this Court.
Id. Respondent, who had not yet filed an Answer, did
not object to the Motion to Dismiss. Dkt. 74. On August 25,
2017, the undersigned recommended the Motion to Dismiss be
granted pursuant to Federal Rule of Civil Procedure 41(a) and
the Petition be dismissed without prejudice. Dkt. 76. The
Honorable Robert J. Bryan, the District Judge assigned to
this case, adopted the Report and Recommendation and
dismissed the Petition without prejudice. Dkt. 79. Judgment
was entered on September 18, 2017. Dkt. 80.
August 1, 2019, more than one year and ten months after the
Judgment was entered, Petitioner filed the pending Motion
seeking relief from the Judgment under Federal Rule of Civil
Procedure 60. Dkt. 81. Respondent filed a Response to the
Motion on August 12, 2019. Dkt. 83. Plaintiff filed a Reply
on August 16, 2019. Dkt. 87; see also Dkt. 85, 86.
Rule of Civil Procedure 60(b) grants district courts
discretion to relieve a party from a judgment or order only
upon a showing of: (1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered before the
court's decision; (3) fraud by the adverse party; (4) the
judgment is void; (5) the judgment has been satisfied; or (6)
any other reason justifying relief. “A motion under
Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) 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)(1).
in his Reply, Petitioner states he is moving for relief under
Rule 60(b)(6). Dkt. 87. To be entitled to relief under Rule
60(b)(6), Petitioner must show “extraordinary
circumstances justifying the reopening of a final
judgment.” Gonzalez v. Crosby, 545 U.S. 524,
535 (2005). “Although such circumstances occur rarely
in the habeas context, Rule 60(b)(6) can and should be
‘used sparingly as an equitable remedy to prevent
manifest injustice.'” Hall v. Haws, 861
F.3d 977, 987 (9th Cir. 2017) (quoting United States v.
Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir. 1993)). In applying Rule 60(b) in habeas cases, the
Ninth Circuit has considered the following six factors:
(1) a showing of extraordinary circumstances, such as a
change in intervening law; (2) the petitioner's exercise
of diligence in pursuing the issue during federal habeas
proceedings; (3) interest in finality; (4) delay between the
finality of the judgment and the motion for Rule 60(b)(6)
relief; (5) degree of connection between the extraordinary
circumstance and the decision for which reconsideration is
sought; and (6) comity.
Hall, 861 F.3d at 987 (citing Phelps v.
Alameida, 569 F.3d 1120, 1135-40 (9th Cir. 2009).
However, the factors are not a “rigid or exhaustive
checklist.” Phelps, 569 F.3d at 1135.
case, Petitioner moved to voluntarily dismiss his Petition,
which was granted. Dkt. 73, 76, 79. The Petition was
dismissed without prejudice on September 18, 2017. Dkt. 79.
On March 21, 2019, Petitioner filed a new federal habeas
petition (“second case”). Alverto v.
Obenland, 3:19-cv-5212-RJB-DWC (W.D. Wash.). The
respondent in the second case filed an answer, alleging the
second case should be dismissed as time-barred. See
id. at Dkt. 22. Petitioner now moves this Court to
vacate the Judgment in the above-captioned case because the
Petition is a mixed-petition and the Court was required to
give him notice that dismissal would result in his federal
claims being time-barred. Dkt. 81. Petitioner states that, if
he had known his claims would be time-barred when attempting
to file a new case, he would have requested the Court
continue the stay in this case. Dkt. 82.
has not shown he is entitled to relief under Rule 60(b). The
Supreme Court has held “federal district judges are not
required to” warn pro se litigants that
dismissal of a mixed-petition would result in federal claims
being time-barred. Pliler v. Ford, 542 U.S. 225, 231
(2004). “District judges have no obligation to act as
counsel or paralegal to pro se litigants.”
Id. The Supreme Court found district judges are not
required to give warnings regarding the statute of
limitations as it undermines the judges' role as
impartial decisionmakers and would require the judges to make
case-specific investigations and calculations, wherein they
might err. Id. at 231-33.
Court had no duty to warn Petitioner regarding the timeliness
of his claims. Therefore, Petitioner has not shown the
Court's failure to warn him regarding any time-bar when
he voluntarily dismissed this case is an extraordinary
circumstance warranting relief from the Judgment.
Amesquita v. Hickman, 2017 WL 2654726, at *1 (E.D.
Cal. June 20, 2017) (noting that “[a]lthough Petitioner
had voluntarily dismissed his prior, timely filed petition,
the Court has no obligation to inform Petitioner of the
consequences of such action”); Wilcher v.
Epps, 203 Fed.Appx. 559, 562 (5th Cir. 2006) (finding no
abuse of discretion where the district found the petitioner
“failed to demonstrate that a motion to withdraw a
voluntarily dismissed habeas petition qualified as an
‘extraordinary circumstance' meriting relief under
Rule 60(b)(6)”); Ritchie Capital Mgmt., L.L.C. v.
Coventry First LLC, 2016 WL 6952248, at *5 (S.D.N.Y.
Nov. 28, 2016) (internal quotations and citation omitted)
(“Just as ...