The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S "MOTION TO RE-OPEN AND RECONSIDER FINAL JUDGMENT AND ORDER DENYING SECTION 2255 MOTION PURSUANT TO AN INDEPENDENT ACTION UNDER FED. R. CIV. P. 60(d)(1)" AND DIRECTING CLERK TO ENTER JUDGMENT FOR RESPONDENT
On July 9, 2009, Petitioner Ray Martin Heffington, proceeding in pro per, filed a "Motion to Reopen and Reconsider Final Judgment and Order Denying Section 2255 Motion Pursuant to an Independent Action under Fed. R. Civ. P. 60(d)(1)."
Petitioner and two others were charged with conspiracy to distribute and possess with intent to distribute approximately five pounds of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and with possession of methamphetamine with intent to distribute in violation of Section 841(a)(1). Prior to the jury trial, the United States filed an Information to Establish Prior Conviction pursuant to 21 U.S.C. § 851, giving notice: [T]he United States intends to rely on defendant Ray Martin Heffington's March 10, 1987 felony conviction in Santa Clara [sic] Superior Court for Possession of Cocaine, case number 109622 and also his January 22, 1998 felony conviction in Santa Clara County Superior Court for Possession of Methamphetamine, case number 119081, for purposes of sentence enhancement under 21 U.S.C. § 841(b)(1)(A) ....
Petitioner was convicted of both federal charges on May 7, 1993. On June 28, 1993, Petitioner moved to strike his prior conviction for possession of methamphetamine on various grounds. Petitioner's motion to strike was denied. On August 2, 1993, Petitioner was sentenced to life imprisonment without release, pursuant to the mandatory sentence enhancement requirement of 21 U.S.C. 841(b)(1)(A). Petitioner's conviction and sentence were affirmed on appeal by the Ninth Circuit.
On March 22, 1996, Petitioner filed a motion pursuant to Section 2255 claiming: (1) violation of 21 U.S.C. § 851 because Petitioner was not asked by the sentencing court whether the prior felony convictions were accurate; (2) improper application of the term "felony drug offense" to his two prior felony convictions; and (3) ineffective assistance of counsel for his counsel's alleged failure to object to the use of Petitioner's two prior felony convictions at sentencing in the federal case.
Petitioner's Section 2255 motion was denied by Order filed on November 26, 1996 on all claims because: (1) Section 851(e) prevents a defendant from attacking convictions older than five years after the judgments were entered in the underlying cases; (2) Petitioner's two prior California convictions for simple drug possession qualify as "felony drug offense(s)" under Section 841(b)(1)(A); and (3) counsel was not ineffective for not raising Petitioner's claims during sentencing since the claims were meritless. (Doc. 198).
On December 5, 1996, Petitioner filed an appeal to the Ninth Circuit from the denial of his Section 2255 motion. The Ninth Circuit remanded the appeal to this Court for the limited purpose of granting or denying a certificate of appealability. By Order filed on April 1, 1997, this Court denied a certificate of appealability. By certified copy filed with this Court on September 15, 1997, the Ninth Circuit denied a certificate of appealability and dismissed Petitioner's appeal.
On June 15, 2001, the Ninth Circuit granted Petitioner permission to file a second or successive Section 2255 motion on his claim that the drug quantity used in determining his sentence was neither charged in the indictment nor submitted to the jury. Petitioner's second Section 2255 motion was filed on June 18, 2001 setting forth this claim. On June 17, 2002, prior to the Government's response, Petitioner amended the second Section 2255 motion, asserting as his second claim that counsel was ineffective by failing to object to the use of Petitioner's two prior state felony convictions at sentencing. By Memorandum and Order filed on August 18, 2004, Petitioner's second Section 2255 motion was denied as well as a Certificate of Appealability. (Doc. 236). Judgment was entered on August 19, 2004. Petitioner did not appeal the denial of his second Section 2255 motion to the Ninth Circuit. On May 14, 2007, Petitioner filed a "Motion to Reopen and Reconsider Final Judgment and Order Denying Section 2255 Motion Pursuant to Fed. R. Civ. P. 60(b)." Petitioner moved to reopen that motion pursuant to Rule 60(b)(1) and (b)(6), Federal Rules of Civil Procedure, based on Lopez v. Gonzalez, 127 S.Ct. 625 (2006). On May 5, 2008, Petitioner filed a "Motion for Leave to Amend and Supplement Rule 60(b) Motion", seeking leave to amend the May 14, 2007 motion to include a claim for relief pursuant to Burgess v. United States, ___ U.S. ___, 128 U.S. 1572 (2008).
By Memorandum Decision and Order filed on May 13, 2008, Petitioner's motions were denied:
In Gonzalez v. Crosby, 545 U.S. 524 (2005), a petitioner convicted in state court for robbery with a firearm filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The United States District Court dismissed the Section 2241 petition as time-barred, and denied a certificate of appealability. Petitioner moved in the District Court for relief from the judgment of dismissal pursuant to Rule 60(b), Federal Rules of Civil Procedure. The District Court denied the motion and the petitioner appealed. The Court of Appeal initially granted a certificate of appealability, but later quashed the COA as improvidently granted and affirmed the denial of the Rule 60(b) motion. The Supreme Court discussed the interaction between Rule 60(b), Federal Rules of Civil Procedure, and the AEDPA. After noting that the AEDPA and its decisions make clear that a "claim" "is an asserted federal basis for relief from a ... judgment of conviction", id. at 530, the Supreme Court stated: In some instances, a Rule 60(b) motion will contain one or more 'claims.' For example, it might straightforwardly assert that owing to 'excusable neglect.' Fed. Rule Civ. Proc. 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim ...
Similarly, a motion might seek leave to present 'newly discovered evidence,' Fed. Rule Civ. Proc. 60(b)(2), in support of a claim previously denied ... Or a motion might contend that a subsequent change in substantive law is a 'reason justifying relief,' Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim ... Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly .... We think those holdings are correct. A habeas petitioner's filing that seeks vindication of such a claim is, if not in substance a 'habeas corpus application,' at least similar enough that failing to subject it to the same requirements would be 'inconsistent with' the statute.
28 U.S.C. § 2254 Rule 11. Using
Rule 60(b) to present new claims for relief from a state court's judgment of conviction - even claims couched in the language of a true Rule 60(b) motion -circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. § 2244(b)(2).
The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: even assuming that reliance on a new factual predicate causes that motion to escape § 2244(b)(1)'s prohibition of claims 'presented in a prior application,' § 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent § 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.' In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule ...