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Rishor v. State

United States District Court, W.D. Washington, Seattle

September 18, 2019

KIRK L RISHOR, Petitioner,
v.
STATE OF WASHINGTON, Respondent.

          ORDER ON PETITIONER’S RULE 60(B)(3)(6) MOTION

          Marsha J. Pechman United States Senior District Judge.

         The above-entitled Court, having received and reviewed:

1. Petitioner’s Rule 60(b)(3)(6) Motion (Dkt. No. 34),
2. Respondent’s Response to Motion (Dkt. No. 36),
3. Petitioner’s Reply to the Attorney General’s Response/Rule 60(b) (Dkt. No. 37), all attached declarations and exhibits, and relevant parts of the record, rules as follows:

         IT IS ORDERED that Petitioner’s motion is DENIED.

         Background

         On September 9, 2011, Petitioner filed a § 2254 habeas petition challenging his 2007 state conviction. Dkt. No. 1. Although the Court initially denied relief (Dkt. No. 40), upon Petitioner’s motion for reconsideration (Dkt. No. 43), the Court set an evidentiary hearing for October 22, 2014. (Dkt. No. 59). Petitioner was in custody in Lompoc, California; on May 23, 2014, the Court, finding that “the interests of justice require that Petitioner be appointed counsel to represent him in the matter, ” referred him to the CJA Panel for appointment of an attorney “to represent Petitioner in the above-entitled matter.” Dkt. No. 51, Order Referring Petitioner for Appointment of Counsel.

         The docket reflects that “the Court deemed the matter sufficiently complex to require the assistance of counsel for Petitioner” (Dkt. No. 53); on May 28, 2014, attorney Todd Maybrown was appointed as counsel for Petitioner. Dkt. No. 52. Maybrown was directed to familiarize himself with the case and given 45 days to file a reply brief in answer to the Government’s response to Petitioner’s motion for reconsideration. Dkt. No. 53 at 1.

         Following the October 22 hearing, the Court granted Rishor’s motion for reconsideration and his habeas petition. Dkt. No. 65. The State of Washington appealed the order (Dkt. No. 67), but, according to Petitioner’s uncontroverted assertion, “the Clerk of the Court notified Todd Maybrown and failed to notify Petitioner.” Dkt. No. 78, Motion at 2. Petitioner further alleges that Maybrown never notified him of the appeal, but instead filed an appellate brief on his own, a brief which Petitioner claims “left out one of Petitioner’s strongest arguments – No. Notice of Charges/Failure to Arraign.” Id. The Ninth Circuit reversed this Court and remanded the matter for reinstatement of the original order denying habeas relief. Dkt. Nos. 71, 75. Pursuant to that remand, this Court entered judgment denying the habeas petition and Petitioner’s motion for reconsideration, and finding instead for the Respondent. Dkt. No. 76.

         Petitioner attempted to overturn the appellate reversal on grounds of ineffective assistance of counsel. (See C18-708MJP.) That effort met with failure when it was characterized as a § 2254 petition (Dkt. No. 25) and then denied as an improperly filed second and successive request for habeas relief. Dkt. No. 32.

         The instant motion under FRCP 60(b) is Petitioner’s attempt to find a procedure congruent with federal civil procedure to “erase” the results of Maybrown’s “unauthorized” filings on his behalf and “re-set” the case back to a point where he could respond on his own behalf to the appeal of this Court’s granting of habeas relief. As Petitioner puts it, “It would seem that a nunc pro tunc order back to December 3, 2014, could fix the problem.” Dkt. No. 78, Motion at 6.

         Discussion

         Petitioner attempts to make his case under two ...


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