United States District Court, S.D. California
ANTONIO SEENYUR, formerly known as ANTHONY L. JOHNSON, Petitioner,
EDMUND J. BROWN, Attorney General of California; and MICHELLE SMITH, Warden, Minnesota Correctional Facility Stillwater, Respondents.
ORDER DENYING MOTION TO SET ASIDE JUDGMENT AND ALLOW LEAVE TO AMEND PRIOR HABEAS PETITION
JEFFREY T. MILLER, District Judge.
On October 28, 2014, Petitioner Antonio Seenyur, a state prisoner acting pro se, filed a motion to set aside the 1999 dismissal of his habeas petition, made pursuant to 28 U.S.C. § 2254, so that he can amend it. (Doc. No. 14.) He also filed a motion for leave to proceed in forma pauperis. (Doc. No. 12.) For the reasons set forth below, the court denies both motions.
On July 8, 1996, after a jury trial, Petitioner was convicted in California court on 66 counts, for violent sexual offenses, kidnappings, and robberies of seven different victims. (Doc. No. 1 at 2.) On August 14, 1996, he was sentenced to five consecutive life terms plus 440 years. (Id.) He appealed to the California Court of Appeal, which affirmed in part and reversed in part. (Id. at 3, 5.) The California Supreme Court declined review, and the United States Supreme Court denied Petitioner's petition for a writ of certiorari on October 5, 1998. (Id. at 3.) Accordingly, Petitioner's deadline for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d), was October 4, 1999.
Petitioner filed a timely petition for a writ of habeas corpus on July 29, 1999. (Doc. No. 1.) According to the petition, the California Court of Appeal had "concluded that the trial court erred in denying [Petitioner] his constitutional right to testify, " but that the error was harmless. (Id. at 5.) Petitioner's only claim for relief was that the denial of a defendant's right to testify in his own defense is "reversible per se and not... subject to harmless error analysis." (Id. at 6.) On September 27, 1999, the court dismissed the petition because Petitioner had not paid the $5 filing fee and had not moved to proceed in forma pauperis, and also because he had failed to name a proper respondent. (Doc. No. 4.) The court gave him until November 29, 1999, to cure the deficiencies. (Id. at 2-3.) He did not do so.
On February 13, 2002, two and a half years after the petition was filed, Petitioner attempted to pay the $5 filing fee. (Doc. No. 10 at 1.) The court ruled that "Petitioner is too late. Among other things, to allow petitioner to wait two and a half years to pursue this action would result in contravention of the purpose and policy underlying [AEDPA]." (Id.) The court continued: "Should petitioner wish to pursue an action pursuant to 28 U.S.C. § 2254, he shall file a new petition that will be assigned a new case number." (Id. at 1-2.)
That was the last this court heard from Petitioner until October 28, 2014, when he filed the instant motion to set aside the dismissal of his 1999 petition pursuant to Federal Rule of Civil Procedure 60(b) so that he can file an amended petition, which, he asserts, should relate back to the original petition pursuant to Federal Rule of Civil Procedure 15(c)(1)(B). (Doc. No. 14.) Petitioner wishes to argue that the judge at his trial exceeded his authority and committed fraud by violating Petitioner's rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments. (Id. at 16-30.)
In support of setting aside the dismissal of his 1999 petition, Petitioner asserts that he "and other innocent client[s] were all the victims of egregious attorney misconduct and fraud" by the lawyers at the firm he hired to represent him, and that he has diligently pursued bringing his claim before the court because he "hired two different private lawyers" and "sought out at least 50 other legal sources by mail." (Id. at 15.)
He provides the following account: After the court dismissed his petition, but before the November 29, 1999 deadline to file an amended petition had passed, he retained private counsel. (Id. at 6.) In 2002, his counsel filed two habeas corpus applications on his behalf in the California courts, but they were denied. (Id. at 7.) Then, in 2004, a lawyer named Alireza Dilmahani sent notice to Petitioner that the name partner at the law firm representing him had passed away, after which he received no further communication for several months. (Id. at 8.) In December of that year, he filed a disciplinary complaint against the firm in New York, which did not result in any action. (Id. at 8-9.) In August 2005, the Securities and Exchange Commission instituted a fraud action against the firm and the lawyers involved. (Id. at 8.) In June 2008, the New York disciplinary committee served Dilmahani with notice of 19 disciplinary charges related to his representation of inmates in New York prisons. (Id. at 9.) Dilmahani was subsequently prosecuted and disbarred. (Id.) In 2010 Petitioner retained different counsel, this time a habeas corpus specialist. (Id. at 9.) But in 2011 or 2012 that attorney sent Petitioner a letter terminating his service due to a medical condition. (Id. at 10.)
Petitioner contends that his 1999 petition should be reopened under Rule 60(b)(3), which allows reopening based on "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party"; and Rule 60(b)(6), which permits reopening for "any other reason that justifies relief." (Doc. No. 14 at 14-15.)
If this were an ordinary civil case, the analysis would be straightforward: Motions under Rule 60 must generally be made "within a reasonable time, " and motions based on fraud must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed.R.Civ.P. 60(c). Because Petitioner waited almost 15 years after the dismissal of his case, the court would conclude that he is too late by any measure.
However, because Petitioner's motion attempts to reopen his previously dismissed habeas petition, the court must decide whether to treat the motion as a second or successive habeas petition rather than a Rule 60(b) motion. Such a ruling is necessary because a Rule 60(b) motion risks circumventing AEDPA's restraints on successive habeas petitions. See Gonzalez v. Crosby, ...