The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING PETITIONER'S MAY 22, 2012 MOTION FOR RECONSIDERATION UNDER RULE 60(b)
Before the court is Petitioner' fifth motion for reconsideration ("Motion") of the Order adopting the Findings and Recommendation ("F&R") to deny his Amended Petition for writ of habeas corpus brought under 28 U.S.C. § 2254 ("Amended Petition"), and denying a certificate of appealability ("COA"). See Ord., ECF #42; Mot., ECF #101; Suppl., ECF #124. Respondent has filed an Opposition to the Motion and a Supplement to the Opposition. ECF #112, #129. Petitioner has filed several Replies. See ECF #123, #130, #132.
For the following reasons, Petitioner's May 22, 2012 Motion for Reconsideration, ECF #101, and July 25, 2012 Supplement to the Motion, ECF #124, are DENIED. To the extent that a certificate of appealability is required, it is DENIED.*fn1
On October 27, 2009, Petitioner was convicted of Theft and Burglary, both in the Second Degree in CR No. 08-1-00869. Although Petitioner was represented by a deputy public defender at his arraignment and plea, the trial court granted his request to proceed pro se at trial with standby counsel, after finding that Petitioner knowingly and intelligently waived his right to counsel. Petitioner was appointed new counsel at sentencing and on appeal, Walter Rodby, Esq.
On December 29, 2010, the Hawai'i Intermediate Court of Appeals ("ICA") affirmed Petitioner's conviction. The Hawai'i Supreme Court rejected Petitioner's pro se application for certiorari on March 7, 2011. On March 16, 2011, Petitioner moved for relief from judgment, which the Hawai`i Supreme Court rejected on March 18, 2011.
On May 5, 2011, Petitioner filed the Amended Petition challenging his conviction in CR No. 08-1-00869, raising four grounds for relief: (1) denial of the right to counsel (Ground One); (2) denial of the right to an impartial judge (Ground Two); (3) jury tampering (Ground Three); and (4) insufficient evidence (Ground Four). ECF #14. The magistrate judge found that Ground One was exhausted but without merit because (1) Petitioner's claim that the deputy attorney general threatened to kill him was unsupported by any evidence and patently frivolous, and (2) Petitioner knowingly and intelligently waived his right to counsel. F&R, ECF #33 at 12-18. The magistrate judge then found that Petitioner "technically" exhausted but procedurally defaulted Grounds Two, Three and Four. Id. at 18-19, 21. Petitioner failed to show cause, prejudice, or actual innocence to excuse this procedural default, and in particular, could not use his appellate counsel's failure to raise these claims as cause, because Petitioner failed to raise a separate and exhausted claim of ineffective assistance of pre-trial, sentencing, or appellate counsel to the state courts. Id. at 21. On August 5, 2011, the magistrate judge found and recommended that the Amended Petition and COA should be denied. Id. at 23-25.
This court adopted the F&R over Petitioner's objections on September 30, 2011. ECF #42. Petitioner appealed, and the Ninth Circuit Court of Appeals denied a certificate of appealability on November 28, 2011. See App. No. 11-17475, DktEntry 5. On January 24, 2012, the appellate court denied rehearing en banc. Id. DktEntry 11. On March 19, 2012, the United States Supreme Court denied certiorari and later denied the petition for rehearing. Id. DktEntry 14, 16.
On May 9, 2012, after remand from the appellate court, this court denied Petitioner's first two motions for reconsideration brought under Fed. R. Civ. P. 60(b) on their merits. ECF #90. On May 17, 2012, the court denied Petitioner's third and fourth Rule 60(b) Motions. ECF #98. On May 22, 2012, Petitioner filed the present Rule 60(b) Motion. ECF #101. On July 25, 2012, Petitioner filed the Supplement. ECF #124.
On June 13, 2012, Petitioner filed a state petition for post-conviction relief under Hawai`i Rules of Penal Procedure (HRPP) 40, raising inter alia, and for the first time to the state courts, his claims of ineffective assistance of pre-trial, sentencing, and appellate counsel. See Exh. A, ECF #129-1. On July 16, 2012, the State answered the Rule 40 Petition; this petition remains pending in the state courts. See Exh. B, ECF #129-1.
Petitioner moves for relief under Fed. R. Civ. P. 60(b), alleging that there is new evidence supporting reconsideration. Rule 60(b) provides relief from judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...