Begay v. United States ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ivan Ray Begay, No. CV-10-08221-PCT-JAT CR-00-1222-PCT-PGR 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 On January 17, 2018, this Court entered the following Order, 16 Pending before the Court is Petitioner’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 48). 17 Petitioner’s motion has two parts. The first part seeks the recusal of Judge Rosenblatt. Because this case 18 has now been reassigned to the undersigned, the Court finds that portion of the motion to be moot. 19 The second part seeks to have Petitioner’s conviction set aside for various reasons. This case was originally filed as a motion to vacate, set 20 aside or correct sentence. (Doc. 1). Relief was denied March 7, 2011. (Doc. 8). A certificate of appealability was denied at the district court level (Doc. 21 8), and denied by the Court of Appeals (Doc. 22). By this Court’s count, Petitioner has moved to reconsider the decision in this case on 12 prior 22 occasions. (Docs. 13, 14, 15, 25, 26, 28, 29, 32, 35, 36, 39, and 43). Petitioner also sought leave to file a successive petition, which the Court of 23 Appeals denied. (Doc. 20). In this thirteenth motion, Petitioner again raises factual contentions 24 that existed and were ripe at the time Petitioner filed his original motion. Thus, while this motion is called a Rule 60(b)(6) motion, it is really a 25 successive § 2255 petition. As noted above, the Court of Appeals has already denied Petitioner’s request to file a successive petition. 26 Further, even if the Court were to treat the motion as one under Federal Rule of Civil Procedure 60(b)(6), “Rule 60(b)(6) should be ‘used 27 sparingly as an equitable remedy to prevent manifest injustice’” and should be used only in “‘extraordinary circumstances to prevent or correct an 28 erroneous judgment.’” In re Int'l Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007) (citing United States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 1 2005)). Here, nothing in Petitioner’s motion shows that the judgment was erroneous or incorrect. 2 Therefore, IT IS ORDERED that Petitioner’s motion for reconsideration (Doc. 3 48) is denied. IT IS FURTHER ORDERED that a certificate of appealability is 4 denied. See generally Lynch v. Blodgett, 999 F.2d 401 (9th Cir. 1993) (requiring a certificate of appealability on a Rule 60 motion). 5 (Doc. 50). 6 On April 29, 2019, this Court issued an Order that quoted the above language and 7 then continued: 8 On April 18, 2019, Petitioner filed a Motion to Amend his Motion to 9 Vacate, Set Aside, or Correct sentence under 28 U.S.C. § 2255. As indicated above, the original § 2255 Motion was denied in 2011. Accordingly, any 10 request to amend or revive that Motion is untimely. Therefore, IT IS ORDERED that the Motion to Amend (Doc. 53) is denied. (Doc. 54). 12 On September 30, 2019, Petitioner again filed a motion to reopen his case. (Doc. 13 56 at 1). Nothing in this new motion changes any of the Court’s prior analysis. 14 Accordingly, for the reasons stated in the prior orders, 15 IT IS ORDERED that Petitioner’s “Omnibus Motion, under Fed. R. Civ. P. 60(b), 16 and Rule 15(c) and 15(d) and 28 U.S.C. § 2242” (Doc. 56.) is denied. 17 IT IS FURTHER ORDERED denying a certificate of appealability. See Lynch v. 18 Blodgett, 999 F.2d 401 (9th Cir. 1993). 19 Dated this 23rd day of October, 2019. 20 21 22 / □ 23 James A. Teilborg 74 Senior United States District Judge 25 26 27 28 _2-