United States District Court, N.D. California, San Jose Division
ORDER DENYING POST-DISMISSAL MATTERS Re: Dkt. Nos.
104, 106, 107
J. DAVILA United States District Judge
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.
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.
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
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).
“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)).
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.
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.
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”).
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
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.
on the foregoing, the motion for reconsideration is DENIED.
The request for a COA is DENIED. The request ...