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Wilson v. Hatch

United States District Court, D. New Mexico

June 27, 2017

JAMES WILSON, Petitioner,
v.
TIMOTHY HATCH, ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.

          MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S RULE 60(B) MOTION

         This matter is before the Court on Petitioner James Wilson's Petition Seeking Leave To File A Pro Se Initial Pleading [Doc. 41], which has been recharacterized as a motion from relief from judgment pursuant to Fed.R.Civ.p. 60(b), and Petitioner's motion for appointment of counsel [Doc. 41 at 6]. The Respondents contend that Petitioner's Rule 60(b) motion is a second or successive § 2254 petition filed without the authorization of the United States Court of Appeals for the Tenth Circuit and, therefore, this Court lacks jurisdiction. [Doc. 42] For the reasons explained below, the Court concludes that Petitioner's Rule 60(b) motion is not a second or successive § 2254 petition, Petitioner's motion for appointment of counsel will be denied, Petitioner's Rule 60(b) motion will be denied, and a certificate of appealability will be denied.

         I. BACKGROUND

         On November 2, 2015, Petitioner filed a Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody challenging the revocation of his probation in State of New Mexico criminal cases D-506-CR-2010-00213, D-506-CR-2011-00271, D-506- CR-2011-00272 and D-506-CR-2011-00324. [Doc. 1] On March 3, 2016, Respondents filed an answer to the § 2254 petition, contending that Petitioner had failed to exhaust his available state-court remedies, that his claims are not cognizable in a federal habeas proceeding, and that his claims lack merit. [Doc. 18]

         On May 19, 2016, Petitioner moved to dismiss his § 2254 petition, contending that on April 27, 2016 the Fifth Judicial District Court of the State of New Mexico had issued an order voiding the revocation of his probation and, therefore, “all of Petitioner's cases are now completely discharged.” [Doc. 19] Respondents did not object to Petitioner's motion to dismiss. [Doc. 20] Before the Court could rule on Petitioner's unopposed motion to dismiss, he filed a Motion Seeking Order To Void [Doc. 21], which sought to void the Fifth Judicial District Court's subsequent May 20, 2016 order revoking probation and imposing judgment in D-506-CR02010-00213, D-506-CR-2011-00271, D-506-CR-2011-00272 and D-506-CR-2011-00324 [Doc. 21]. Petitioner also filed: (1) a Motion Seeking Relief From Orders in D-506-CR-2011-00271, D-506-CR-2011-00272, and D-506-CR-2011-00324 Filed on May 20, 2016, Which Violate The Prohibition on Double Jeopardy Pursuant To The Fifth Amendment To The United States Constitution and Article II, §§ 15 and 18 of the New Mexico Constitution [Doc. 24]; (2) a Petition For Writ of Mandamus [Doc. 26]; (3) and an Amended § 2254 Petition [Doc. 27].

         On October 12, 2016, Magistrate Judge Laura Fashing noted that Petitioner's filings “appear to reflect Petitioner's intent to proceed on the merits of his § 2254 petition, ” but that Petitioner's unopposed motion to dismiss his § 2254 petition remained pending on the docket. [Doc. 28] Judge Fashing notified Petitioner that if he wished to withdraw his motion to dismiss, he must file a motion to withdraw in accordance with Rule 7.7 of the Local Civil Rules of the United States District Court for the District of New Mexico within thirty days. [Doc. 28] Petitioner timely filed a Notice of Withdrawal of his motion to dismiss and asked the Court to “order Respondent to Immediately Respond to the Amended Petition (Doc. 27).” [Doc. 29] Respondents did not object to the withdrawal of Petitioner's motion to dismiss, but did object to the filing of the Amended Petition, contending that the amendment was untimely, filed without Respondents' consent, and not in the interest of justice under Fed.R.Civ.P. 15(a). [Doc. 31] On November 4, 2016, Magistrate Judge Fashing deemed Petitioner's Motion to Dismiss to be withdrawn pursuant to Local Rule 7.7 and recharacterized Petitioner's Amended Petition as a motion to amend his § 2254 petition pursuant to Fed.R.Civ.P. 15(a)(2). [Doc. 32] Magistrate Judge Fashing informed the parties that “[t]he opposed motion to amend will be addressed by the Court in a separate order” and that “[n]o further responses from the parties are required at this time.” [Doc. 32 at 2]

         On February 6, 2017, Petitioner filed a motion requesting the dismissal of this § 2254 proceeding without prejudice. [Doc. 37] Respondents did not file a response to Petitioner's motion and, therefore, they were deemed to “consent to grant the motion” pursuant to Local Rule 7.1(b). [Doc. 38] The Court granted Petitioner's unopposed motion to dismiss this § 2254 proceeding without prejudice pursuant to Fed.R.Civ.P. 41(a)(2) and entered final judgment. [Docs. 38, 39]

         In the meantime, in Wilson v. County of Lea, 16-CV-00328-MCA-GBW, Doc. 17 at 8 (D.N.M. May 16, 2016), Chief United States District Judge M. Christina Armijo imposed filing restrictions on Petitioner in light of his abusive litigation history, which restricted Petitioner “from initiating further litigation in this Court arising out of his conviction, sentencing, or probation revocation in State of New Mexico Criminal cases nos. D-506-CR02010-00213, D-506-CR-2011-00271, D-506-CR-2011-00272, and D-506-CR-2011-00234 . . . unless either a licensed attorney who is admitted to practice before this Court signs the pleading or Wilson first obtains permission to proceed pro se from the Court.” In light of these filing restrictions, Petitioner submitted a Petition Seeking Leave To File A Pro Se Initial Pleading and a motion for appointment of counsel. [Doc. 41] The initial pleading that Petitioner sought to file was a proposed § 2254 petition challenging the Fifth Judicial District's May 20, 2016 order revoking his probation in D-506-CR-2011-00271, D-506-CR-2011-00272 and D-506-CR-2011-00324. Chief United States Magistrate Judge Karen B. Molzen denied Petitioner's request to file a new § 2254 petition, reasoning that Petitioner had “voluntarily moved to dismiss” his pending § 2254 petition in this case “in order to file the proposed new action, which raises identical claims.” [Doc. 40 at 3] Although Chief Judge Molzen refused to “permit Mr. Wilson to engage in improper forum-shopping by filing a new and duplicative § 2254 action, ” she liberally recharacterized the Petition Seeking Leave To File A Pro Se Initial Pleading as a motion for relief from judgment in the present case pursuant to Fed.R.Civ.p. 60(b). [Doc. 40 at 3]

         On March 14, 2017, Respondents filed a response in opposition to Petitioner's Rule 60(b) motion, contending that it was a second or successive § 2254 petition filed without authorization of the United States Court of Appeals for the Tenth Circuit and, therefore, this Court lacks jurisdiction. [Doc. 42] On April 5, 2017, Petitioner filed a reply indicating that he “was led to believe that it was to[o] late to file an amended petition in this case, and did ask the court to dismiss ‘without prejudice, ' so that he could file a petition to address the current issues instead.” [Doc. 43] Petitioner also repeated his request for the appointment of counsel in this case. [Doc. 43] On April 20, 2017, Petitioner filed an Urgent Request for Ruling, contending that he “is and has been illegally incarcerated for more than a year in violation of protections which are supposedly inherent to his citizenship of this country, even the Petitioner's right to counsel, if he is unable to afford it, is being blatantly ignored.” [Doc. 44]

         II. DISCUSSION

         The Court first will address whether Petitioner's Rule 60(b) motion is a “second or successive” § 2254 petition and then will proceed to address the merits of Petitioner's motion for appointment of counsel and Petitioner's Rule 60(b) motion.

         A. Petitioner's Rule 60(b) Motion Is Not A Second Or Successive § 2254 Petition

         Respondents contend that Petitioner's Rule 60(b) motion is not a “true” Rule 60(b) motion, but rather a second or successive § 2254 petition, because Petitioner “attempts to raise the same issues presented in his original and voluntarily dismissed petition of November 2, 2015.” [Doc. 42 at 2] It is well settled that the phrase “second or successive” is a term of art that “does not simply refer to all § 2254 applications filed second or successively in time.” Magwood v. Patterson, 561 U.S. 320, 331 (2010) (internal quotation marks omitted). For example, the following types of cases are not subject to the statutory restriction on “second or successive” petitions:

where the previous petitions have been dismissed without prejudice for failure to exhaust state remedies, see e.g., McWilliams v. Colorado, 121 F.3d 575, 575 (10th Cir. 1997); where the first post-conviction remedy was used solely to reinstate the right to a direct appeal; see, e.g., United States v. Scott, 124 F.3d at 1330; where the first petition was dismissed for failure to pay the filing fee; see, e.g., Benton v. Washington, 106 F.3d 162, 164-65 (7th Cir. 1996); where the first § 2255 motion is dismissed without prejudice because it was filed while the direct criminal appeal was pending, see Flores v. United States, No. 97-8080, 1997 WL 525596 (8th Cir. 1997) (unpublished disposition); and where the first petition is returned for being ...

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