Free Order on Motion to Vacate - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Magistrate Judge Anderson, in his Report and Recommendation entered on December 18, 2000, recommended that the petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be dismissed as untimely because the statute of limitations mandated by the federal Anti-Terrorism and Effective Death Penalty Act had expired prior to the time the petitioner filed his petition for post-conviction relief (PCR) in the state court and because the petitioner had failed to raise any basis for equitably tolling the statute of limitations. The Court accepted and adopted the Report and Recommendation and entered a judgment of dismissal on April 4, 2001. The Ninth Circuit entered an order on September 17, 2001 that denied the petitioner's request for a certificate of appealability. Pending before the Court is the petitioner's Motion to Vacate Pursuant to Gonzalez v. Crosby for Fraud on the Court - Request for Counsel, filed July 13, 2005, which the Court liberally construes as a motion to vacate the judgment pursuant to vs. Terry L. Stewart, et al., Respondents. William Richard Conlon, Petitioner, ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CV-00-1543-PHX-PGR ORDER

Case 2:00-cv-01543-PGR

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Filed 08/02/2005

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Fed.R.Civ.P. 60(b)(3). See Gonzalez v. Crosby,

U.S.

, 125 S.Ct. 2641, 2651

(2005) ("We hold that a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction. A motion that, like the petitioner's, challenges only the District Court's failure to reach the merits does not warrant such treatment, and can therefore be ruled upon by the District Court with precertification by the Court of Appeals pursuant to § 2244(b)(3).") The gist of the petitioner's argument, to the extent that the Court understands it, is that the state attorney general's office perpetrated fraud on the Court by contending that the petitioner's PCR was not timely filed when in fact it was not barred from federal habeas review due to the Arizona courts' failure to uniformally and consistently apply the state rules on "Rule 32" petitions.1 The Court finds that the petitioner's Rule 60(b)(3) motion should be denied as untimely inasmuch as it was filed over four years after the judgment of dismissal was entered. Rule 60(b) provides in relevant part that the "motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Therefore, IT IS ORDERED that the petitioner's Motion to Vacate Pursuant to Gonzalez v. Crosby for Fraud on the Court - Request for Counsel (doc. #28), construed as a motion pursuant to Fed.R.Civ.P. 60(b)(3), is denied.

1

Although the petitioner also argues, in an unexplained conclusory statement, that his U.S. , 125 S.Ct. 1897 habeas petition was timely filed pursuant to Pace v. DiGuglielmo, (2005), that does not help him given that the Supreme Court held in Pace that a state postconviction petition rejected by the state court as untimely is not "properly filed" within the meaning of the AEDPA and cannot be used to toll the AEDPA's one year statute of limitations. In this case, the AEDPA's limitations period had expired before the petitioner even filed his Rule 32 petition.

Case 2:00-cv-01543-PGR

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3Filed 08/02/2005 DATED this 1st day of August, 2005.

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