The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT; ORDER DENYING CERTIFICATE OF APPEALABILITY
Defendant Michael Christakis ("defendant") was sentenced on May 6, 1991, to a 292-month term of imprisonment for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, 841(a)(1). (Def.'s Ex. B at 1). The Court of Appeals for the Ninth Circuit affirmed defendant's conviction on appeal, and the mandate was spread May 15, 1992.
Defendant made several attempts to file a motion to vacate his sentence, succeeding in February of 1997. (Id.). In that motion, defendant made two claims:
First, he argued that [Victor] Sherman did not thoroughly examine witnesses during the Franks hearing because he was trying to avoid highlighting Dicesare's [another Sherman client] involvement in the conspiracy. Second, he argued that Sherman never advised him to consider providing the government with information that would have implicated DiCesare in the drug conspiracy in exchange for reduced sentence.
United States v. Christakis, 238 F.3d 1164, 1167 (9th Cir. 2001). The Honorable Edward Rafeedie initially denied the motion without evidentiary hearing. Id. The Ninth Circuit, however, reversed and required the Court to hold an evidentiary hearing. Id. at 1170-71. When remanding the case, the Ninth Circuit specifically cited the following sworn statement by defendant's trial counsel, Mr. Sherman: "I am sure that one of the reasons I did not discuss this option [to cooperate with government against other Sherman client] with Mr. Christakis was because of my relationship with Mr. DiCesare." Id. at 1170.
Judge Rafeedie subsequently held an evidentiary hearing on defendant's claim of a conflict of in interest on the part of Sherman. (Def.'s Ex. B at 1-2). After considering two affidavits by Sherman dated in 1997 and 1998 and testimony including Sherman's at the evidentiary hearing, the Court denied defendant's motion because, although defense counsel did represent conflicting interests, defendant failed to show any adverse effect on counsel's representation of defendant. (Def.'s Ex. B at 5-6). The Court considered a perceived inconsistency between two affidavits by Sherman and then specifically found that Sherman's testimony that he did not perceive a conflict and that it did not affect his representation of defendant was credible. (Id.).
Defendant appealed the denial of his motion. (Ex. A at 11). On February 12, 2004, the Ninth Circuit affirmed the denial of defendant's motion based upon defendant's failure to establish an adverse effect on counsel's performance, 87 Fed. App. 678, and the mandate was received May 27, 2004. (Ex. A at 12). On July 10, 2006, over two years later, defendant attempted to file a motion to "re-open" the judgment, but the Court rejected it. (Id.).
On or about May 1, 2008, defendant signed the instant "Motion to Alter or Amend the Judgment Pursuant to Federal Rules of Civil Procedure, Rule 59(e)," and it was ordered filed on July 18, 2008, and referred to the chief judge due to the unavailability of the trial judge.
Defendant relies on a June 27, 2005 declaration by trial counsel Sheriman to re-open his prior motion under section 2255. (Def.'s Mot. at 11). In this declaration, Sherman restates some of his testimony during the evidentiary hearing, argues that the 1998 declaration was not false or contradictory, states that he re-wrote the 1998 declaration, and re-iterates again that he believed he withheld advising defendant of the possibility of cooperating against a Mr. DiCesare "because of [Sherman's] relationship with Mr. DiCesare." (Def.'s Mot. Ex D at 1-2).
II. SUMMARY OF PARTIES' POSITIONS
A. Defendant's Motion to Alter or Amend the Judgment
Defendant contends that, based on his motion and the files and records of this case, the "Court should reconsider its previous factual and legal conclusions, and thereafter alter and amend the judgment by granting defendant's motion to vacate, and set aside his conviction pursuant to 28 U.S.C. § 2255, or in the alternative, the Court should hold an evidentiary hearing on this matter." (Def.'s Mot. at 17). In his Reply, defendant asserts his claim for the same relief, but proposes that, if the Court does not find Rule 59(e) a suitable vehicle upon which to grant relief, then the Court should grant relief under Rule 60(b)(6) or Rule 60 (d)(1). Finally, defendant concludes that the Court should grant the motion to alter or amend the judgment in a manner it deems appropriate or "construe this motion as a motion under one of the alternatives provided to grant equitable relief." (Def. Reply at 10).
At the heart of defendant's motion, no matter by what name, is his claim that he should have his conviction set aside because he did not have conflict-free representation when he made his guilty plea. That is because Mr. Sherman did not suggest that he, Michael Christakis, consider offering to ...