Nash v. Hepp

Dist. Ct. did not err in denying defendant’s Rule 60(b)(6) motion to set aside Dist. Ct.’s prior denial of defendant’s habeas petition alleging that his trial counsel was ineffective for advising him to plead no contest to sexual assault charge and then failing to file notice of intent to seek post-conviction petition, where denial of habeas petition was based on finding that defendant had procedurally defaulted his ineffective assistance of counsel claim. Rule 60(b)(6) motion should only be granted on extraordinary circumstances, and although U.S Supreme Ct. subsequently found in Maples, 132 SCt 912 that ineffective assistance of counsel could excuse procedural default under certain circumstances, any change in law was insufficient to establish extraordinary circumstance. Moreover, decision in Maples did not apply, where defendant failed to take advantage of opportunity to cure trial counsel’s failure to pursue post-conviction relief by subsequently filing his own post-conviction petition, as advised by state court.