1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CHARLES MAKI, Case No. 3:20-cv-00274-MMD-WGC

7 Petitioner, ORDER v. 8

9 RENEE BAKER, et al.,

10 Respondents.

11 12 Before the Court in this closed habeas matter is Petitioner Charles Maki’s Rule 13 60(b)(6) motion and motion for evidentiary hearing. (ECF Nos. 14, 15 (“Motions”).) 14 Maki submitted a petition for writ of habeas corpus under

and an 15 application to proceed in forma pauperis (“IFP Application”) on May 7, 2020. (ECF Nos. 16 1, 1-1.) The Court denied the IFP Application and ordered Maki to pay the $5 filing fee 17 and show cause as to why this action should not be dismissed as an unauthorized second 18 or successive petition. (ECF No. 3.) The Court explained that the instant action 19 challenged Maki’s judgment of conviction in case number CR94-0345, but Maki had 20 already challenged that same judgment of conviction in case number 3:12-cv-00201- 21 LRH-VPC.1 (Id.) Maki responded to the order to show cause (ECF No. 4), but he did not 22 pay the filing fee. On August 5, 2020, the Court dismissed the action based on the lack 23 of a filing fee, but “[t]o avoid future needless litigation,” this Court also reviewed Maki’s 24 response to the order to show cause. (ECF No. 5.) The Court determined that it did not 25 have jurisdiction to consider Maki’s claims and that Maki needed to file an application for 26 1In case number 3:12-cv-00201-LRH-VPC, the Court dismissed the petition with 27 1 authorization to file a second or successive petition with the Court of Appeals. (Id. at 2.) 2 Judgment was entered on August 6, 2020. (ECF No. 6.) 3 On September 8, 2020, Maki moved for reconsideration, and on September 11, 4 2020, Maki filed a notice that he had sent his $5 filing fee on September 2, 2020. (ECF 5 Nos. 8, 9.) On October 8, 2020, the Court denied the motion for reconsideration because 6 Maki failed to explain why he sent the filing fee after the Court dismissed the action and 7 merely repeated his arguments from his response to the order to show cause in his motion 8 for reconsideration. (ECF No. 10.) 9 Maki now moves for relief from the judgment under Fed. R. Civ. P. 60(b) and for 10 an evidentiary hearing. (ECF Nos. 14, 15.) In the Motions, Maki argues that he is actually 11 innocent because his trial counsel failed to investigate, locate, and present his medical 12 records at his trial. (Id. at 5.) According to Maki, these medical records, which he 13 discovered after his sentencing, would have proven that he could not have committed the 14 sexual allegations because he was wearing a full body cast and was diagnosed as being 15 impotent at the time the sexual assaults occurred. (Id.) Maki also argues that his trial 16 counsel was ineffective in failing to seek suppression of his confession, failing to file 17 pretrial motions to get a continuance to obtain his medical records, failing to provide him 18 with discovery, failing to raise a diminished-capacity defense, failing to interview a 19 witness, and failing to hire an expert. (Id. at 9, 12, 17, 20, 22, 23.) Moreover, Maki alleges 20 that the prosecutor failed to turn over his medical records, the state district court judge 21 was biased, law enforcement coerced him into giving a false confession and did not 22 properly give him his Miranda warnings, and the state district court improperly allowed a 23 videotape that was recorded without his knowledge to be used against him. (Id. at 8, 24, 24 29, 31, 34.) 25 Under Fed. R. Civ. P. 60(b), the Court may relieve a party from a final judgment or 26 order for the following limited reasons:

27 2 1 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 2 discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 3 misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier 4 judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 5 6 “A Rule 60(b) motion is proper when it ‘attacks, not the substance of the federal court’s 7 resolution of a claim on the merits, but some defect in the integrity of the federal habeas 8 proceedings.’” Wood v. Ryan,

(9th Cir. 2014) (quoting Gonzalez v. 9 Crosby,

(2005)). 10 Motions for relief under “Rule 60(b) must be made within a reasonable time.” Fed. 11 R. Civ. P. 60(c)(1). Maki’s motion for relief has not been made within a reasonable time. 12 This Court dismissed Maki’s petition on August 5, 2020, and judgment was entered on 13 August 6, 2020. (ECF Nos. 5, 6.) Maki did not move for relief from that judgment until 14 October 17, 2022—2 years, 2 months, and 11 days later. Maki gives no explanation for 15 this delay.2 16 Moreover, Maki does not attack a defect in the integrity of his federal habeas 17 proceedings. Rather, it appears that Maki’s Motions are second or successive habeas 18 corpus petitions, which is proscribed under AEDPA. See Gonzalez,

. And 19 as the Court explained in its order dismissing this action, the Court does not have 20 jurisdiction to consider Maki’s claims unless he can get authorization from the Court of 21 Appeals to file a second or successive petition. (ECF No. 5 at 2.) 22 It is therefore ordered that the motion for Rule 60(b)(6) review (ECF No. 14) and 23 the motion for evidentiary hearing (ECF No. 15) are denied. 24 /// 25 ///

26 2Notably, Maki does not allege when he received his newly discovered medical 27 records. 3 1 It is further ordered that, because reasonable jurists would not find this decision to 2 || be debatable or wrong, a certificate of appealability is denied. 3 DATED THIS 31* Day of October 2022. 4 5 ASR MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28