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United States v. Hodge

United States District Court, N.D. California, San Jose Division

July 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MAURICE DESHAWN HODGE, Defendant.

          ORDER DENYING POST-DISMISSAL MATTERS Re: Dkt. Nos. 104, 106, 107

          EDWARD J. DAVILA United States District Judge

         In 2010, Defendant Maurice Deshawn Hodge (“Defendant”) pled guilty to one count of Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count of Conspiracy to Retaliate Against a Witness in violation of 18 U.S.C. § 1513(b)(2) and 1513(f). He was sentenced to a prison term of 120 months and a five-year term of supervised release.

         Nearly six years later, Defendant filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 94. This court reviewed the motion and ordered Defendant to show cause why it should not be summarily denied as untimely. Dkt. No. 98. Defendant did not file a conforming response, and the court ultimately dismissed the § 2255 motion and denied a motion to appoint counsel. Dkt. No. 102.

         Presently before the court are three post-dismissal matters filed by Defendant Maurice Deshawn Hodge: (1) a motion for reconsideration (Dkt. No. 104), (2) a request for certificate of appealability (“COA”) (Dkt. No. 106), and (3) a request for appointment of counsel (Dkt. No. 107). As to these matters, the court finds, concludes and orders as follows:

         1. Though Defendant does not cite the authority upon which his reconsideration motion rests, the court construes it under Federal Rules of Civil Procedure 59(e) and 60(b). See United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984) (“[T]he moving party's label for its motion is not controlling . . . . Rather, the court will construe it, however styled, to be the type proper for the relief requested.”). “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Relief under Rule 59(e) is “extraordinary” and “should be used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999); Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (explaining that a party must overcome a “high hurdle” to obtain relief under Rule 59(e) since only “highly unusual circumstances” will justify its application).

         2. “Rule 60(b) ‘provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) extraordinary circumstances which would justify relief.'” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)). “Rule 60(b) is ‘remedial in nature and . . . must be liberally applied.'” TCI Group Life Ins. v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)).

         3. In support of reconsideration, Defendant explains he “had no legal knowledge nor legal help with respect to filing” his § 2255 motion, had only received his case file the month prior to filing the § 2255 motion, and was unaware how to respond to the order to show cause. Defendant also states he filed a request for appointment of counsel, which he believes the court should have granted when it issued the order to show cause.

         4. Defendant's explanation for his failure to timely respond to the order to show cause does not justify relief under Rule 59(e) or Rule 60(b). Looking at Rule 59(e), Defendant has not cited any plausible errors of law or fact, produced any new or previously unavailable evidence, described a manifest injustice, or identified a change in controlling law. To the extent be argues the denial of his motion to appoint counsel qualifies as legal error or manifest injustice, the court is not persuaded. Indeed, “the sixth amendment right to counsel does not apply in habeas corpus actions.” Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). And “[u]nless an evidentiary hearing is required, the decision to appoint counsel is within the discretion of the district court.” Id. No evidentiary hearing was required to resolve the single issue addressed by the order to show cause.

         5. Nor is Defendant entitled to relief under Rule 60(b). Liberally applying the Pioneer/Briones equitable test to Defendant's failure to comply with the response deadline required by the order to show cause, the court finds the identified reasons for delay - incarceration and lack of counsel - insufficient to show excusable neglect since, again, appointment of counsel was unnecessary under these circumstances. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)). Furthermore, incarceration and lack of counsel do not constitute “extraordinary circumstances” for habeas actions; instead, these are characteristics common to most every habeas petitioner. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (holding that “extraordinary circumstances” under Rule 60(b) “will rarely occur in the habeas context”).

         6. Turning to Defendant's request for a COA, the court observes that when, as here, “the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). For this proceeding, the court finds that “jurists or reason” could not find debatable that Defendant's § 2255 motion was untimely, and that Defendant provided no reason to equitably toll the statute of limitations for five years.

         7. Finally, the court does not find the interests of justice require the appointment of counsel for Defendant under 18 U.S.C. § 3006A(g). As such, his renewed request for such relief will be declined.

         Based on the foregoing, the motion for reconsideration is DENIED. The request for a COA is DENIED. The request ...


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