United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on pro se Petitioner
Colbert's Motion for Relief from Judgment. Dkt. #56. On
April 22, 2019, this Court adopted the Report and
Recommendation (“R&R”) of the Honorable
Michelle L. Peterson and dismissed Petitioner's petition
for a writ of habeas corpus. Dkt. #43. The Court issued a
judgment the same day and closed this case. Dkt. #44. On
November 26, 2019, Petitioner filed a Motion for Relief from
Judgment pursuant to Fed.R.Civ.P. 60(b). Dkt. #56. Respondent
has not filed a response. For the reasons set forth below,
the Court DENIES Petitioner's Motion.
full background of this case is set forth in this Court's
previous decisions. See Dkt. #43 at 2-3. Petitioner
was convicted in Washington State Superior Court in 2005 and
sentenced to 136 months to life on one count of second degree
rape and one count of third degree rape. Dkt. #10 at 1. Since
that time, Petitioner has filed five habeas petitions with
this Court, including the petition at issue in this closed
case. See Dkt. #29 at 2-3 (recounting history).
March 22, 2017, the state court entered an order correcting a
scrivener's error on the in Petitioner's 2005
judgment. Dkt. #25-5 at 143, 204. The 2005 judgment
incorrectly listed the maximum term for the second degree
rape charge as ten years rather than the actual statutory
maximum term for the offense, which is life. Id.
This error did not affect the trial court's sentencing in
2005, which sentenced Petitioner to a minimum term of
confinement within the standard range and to a maximum term
of life. See Dkt. #25-1 at 6.
October 24, 2018, Petitioner filed his fifth petition for
writ of habeas corpus by a person in state custody pursuant
to 28 U.S.C. § 2254. Dkt. #10. His petition claimed to
challenge the order entered on March 22, 2017, which
Petitioner characterized as an “amended
judgment.” However, upon review of the record, Judge
Peterson determined that the March 2017 order was not an
amended judgment but merely an order correcting the
scrivener's error in Petitioner's original judgment.
Accordingly, on March 26, 2019, Judge Peterson recommended
dismissal of the petition as “clearly successive”
under 28 U.S.C. § 2244(b). Dkt. #29 at 5. On April 22,
2019, this Court adopted the R&R in full and dismissed
Petitioner's habeas petition. Dkt. #43. The Court found
that the R&R “leads to the clear conclusion that
the Petition is an improperly filed successive petition and
should be dismissed.” Id. at 2.
November 26, 2019, Petitioner filed the instant Motion for
Relief from Judgment under Fed.R.Civ.P. 60(b)(4) alleging a
“defect in the integrity of the proceedings.”
Dkt. #56 at 1-2 (citing Gonzales v. Crosby, 545 U.S.
524 (2005)). Plaintiff argues that the Court erred in
dismissing his petition for writ of habeas corpus as
“successive” since he was attacking the
“amended judgment” entered on March 22, 2017.
Respondent has not filed a response.
Rule 60(b), “on motion and just terms, the court may
relieve a party . . . from a final judgment, order, or
proceeding for . . . mistake, inadvertence, surprise, or
excusable neglect . . . newly discovered evidence . . . fraud
. . . [if] the judgment is void . . . the judgment has been
satisfied . . . or any other reason that justified
relief.” “Any other reason” is limited only
to exceptional or extraordinary circumstances, and the moving
party bears the burden of establishing the existence of such
circumstances. United States v. Sparks, 685 F.2d
1128, 1130 (9th Cir. 1982).
has failed to demonstrate any of the above grounds for
relief. Although Petitioner brings this motion under Rule
60(b)(4), he does not allege that the judgment is void.
See Fed. R. Civ. P. 60(b)(4) (Providing for relief
from judgment if “the judgment is void”).
Instead, he generally alleges a “defect in the
integrity of the proceedings.” Dkt. #56 at 1-2 (citing
Gonzales v. Crosby, 545 U.S. 524 (2005)). Petitioner
does not assert newly discovered evidence, fraud, or void or
satisfied judgment, making subsections (b)(2) through (b)(5)
inapplicable. Nor is the catch-all provision of subsection
(b)(6) applicable. Section (b)(6) is used “sparingly as
an equitable remedy to prevent manifest injustice and is to
be utilized only where extraordinary circumstances prevented
a party from taking timely action to prevent or correct an
erroneous judgment.” Fantasyland Video, Inc. v.
Cty. of San Diego, 505 F.3d 996, 1005 (9th Cir. 2007)
(internal quotations omitted). Petitioner has not argued such
remaining ground for relief is subsection (b)(1), which
provides the court with discretion to correct a judgment for
mistake or inadvertence made by counsel or by the court
itself. Fed.R.Civ.P. 60(b)(1); Fidelity Fed. Bank, FSB v.
Durga Ma Corp. 387 F.3d 1021, 1024 (9th Cir. 2004).
Here, Petitioner argues that the court erred in interpreting
his habeas petition as a successive challenge to the 2005
judgment rather than a new petition challenging the March
2017 order. See Dkt. #56 at 2-3. In support of this
proposition, he claims that the March 2017 order “most
certainly was not a scrivener's error” and that the
2005 judgment was not final because “an entire direct
appeal precluded Colbert's habeas petition.”
Id. at 5.
initial matter, Petitioner has improperly used this Motion to
reargue an issue previously considered by the Court.
Center for Biological Diversity v. Norton, 304
F.Supp.2d 1174, 1178 (D. Ariz. 2003) (“It is not the
proper function of a Rule 60(b) motion to reargue matters
that have already been litigated.”). Here, the Court
rejected Petitioner's argument that the March 2017 order
was an “amended judgment, ” finding that it
merely corrected the sentencing data without modifying the
underlying conviction or sentence imposed. Dkt. #43 at 2-3
(citing Dkt. #29 at 3-6). On this basis alone, denial of
Petitioner's motion is appropriate. See Am. Ironworks
& Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d
892, 899 (9th Cir. 2001) (Finding no abuse of discretion for
denial of Rule 60(b) motion where movant merely reargued
issues raised previously).
Petitioner's arguments are either inapposite or incorrect
as a matter of law. First, Petitioner argues that the Supreme
Court has interpreted the phrase “second or
successive” in 28 U.S.C. § 2244(b) to apply to the
judgment challenged rather than “all Section 2254
applications filed second or successively in time.”
Dkt. #56 at 3 (citing cases). This argument is irrelevant,
given the Court's finding that the March 2017 order was
not a judgment. See Dkt. #43 at 4. Similarly,
Petitioner raises Magwood again to argue that entry
of the March 2017 “amended judgment” removes the
successive petition bar. Dkt. #56 at 5 (citing Magwood v.
Patterson, 561 U.S. 320 (2010)). This Court previously
explained why Magwood was inapplicable, given that
the March 2017 order was not an amended judgment and made no
modification to the underlying conviction or sentence
imposed. Dkt. #43 at 2; see also Dkt. #29 at 4-5
(“In Magwood, the judgment was amended after
the petitioner was granted federal ...