United States District Court, W.D. Washington, Seattle
ORDER ON PETITIONER’S RULE 60(B)(3)(6)
J. Pechman, United States Senior District Judge.
above-entitled Court, having received and reviewed:
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
ORDERED that Petitioner’s motion is DENIED.
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.
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.
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.
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.
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.
attempts to make his case under two provisions of FRCP 60(b):
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the court
may relieve a party or its legal representative from a final
judgment, order, or ...