A jury convicted Michael L. Montalvo of engaging in a continuing criminal enterprise ("CCE"), 21 U.S.C. § 848, and the court sentenced him to life imprisonment. Defendant subsequently brought a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The court denied his motion, and the court of appeals affirmed. Defendant then sought relief from that judgment pursuant to Federal Rule of Civil Procedure 60(b), and the court denied his motion, as well as two subsequent motions for reconsideration. Defendant now moves once more for reconsideration of the denial of his Rule 60(b) motion.*fn1
I. Factual and Procedural Background
In Richardson v. United States, the Supreme Court held that in order to find a defendant guilty under the CCE statute, the jury "must unanimously agree not only that the defendant committed some 'continuing series of violations[,]' but also that the defendant committed each of the individual 'violations' necessary to make up that 'continuing series.'" 526 U.S. 813, 815 (1999). Since defendant was convicted before the Court decided Richardson, the jury did not receive the instruction that Richardson now requires. (See United States v. Montalvo, No. 89-062, Mag. Judge's Findings & Recs. 36, adopted in full, Docket No. 889 (E.D. Cal. July 11, 2001).)
Defendant subsequently brought a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Id. at 1-2.) This court found that while the failure to instruct the jury pursuant to Richardson was not harmless error, defendant's claim was precluded by the anti-retroactivity principle of Teague v. Lange, 489 U.S. 288 (1989). (See id. at 39-40.) Defendant then filed an appeal challenging the court's conclusion that Richardson was not retroactive; the government opposed the appeal, but did not file a cross-appeal addressing the harmless-error issue. (Def.'s Mot. for Relief (Docket No. 1050) at 2; see Pl.'s Mot. to Dismiss (Docket No. 1052) at 3-4.)
The court of appeals affirmed this court's order, but on different grounds; it found that Richardson applied retroactively, but the failure to give the instruction to the jury was harmless error. United States v. Montalvo, 331 F.3d 1052, 1059 (9th Cir. 2003) (per curiam).
Defendant subsequently brought a motion for relief from final judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In that motion, defendant cited Greenlaw v. United States, 128 S.Ct. 2559 (2008), to argue, inter alia, that due to the government's failure to file a cross-appeal, the court of appeals was without jurisdiction to determine whether the Richardson-error was harmless. Therefore, defendant argued, the judgment of the court of appeals was "void" under Rule 60(b)(4). Defendant reiterated the same or substantially similar arguments under Rule 60(b)(5) and (6).
In an Order issued on November 17, 2008, this court denied defendant's motion; as to defendant's argument pursuant to Rule 60(b)(4), the court specifically held that it had "no jurisdiction to review orders of the [c]court of [a]ppeals" and to adjudge them "void." United States v. Montalvo, No. 97-2015, 2008 WL 4937624, at *1 (E.D. Cal. Nov. 17, 2008) (citing In re Sasson, 424 F.3d 864, 876 (9th Cir. 2005); Peterson v. Brooks, No. 07-2442, 2008 WL 4072700, at *4 (E.D. Pa. Aug. 29, 2008)). The court subsequently denied two motions for reconsideration filed by defendant, as well as his request for a certificate of appealability.
Presently before the court is defendant's motion for reconsideration of the court's November 17, 2008 Order in light of Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009).
In Phelps, the Ninth Circuit clarified the "analytical approach to Rule 60(b)(6) motions." Id. at 1134-35. Previously, Ninth Circuit precedent instructed that Rule 60(b)(6) could never provide relief due to subsequent changes in governing law. See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir. 1989) (affirming the denial of a Rule 60(b)(6) motion because "the judgment [at issue]... became final before the laws changed"). Phelps, however, recognized that this per se rule was inconsistent with the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005), which "did not hold that denial of the motion was required because it rested on a subsequent change in the law." 569 F.3d at 1132. Instead, the Supreme Court affirmed the denial of a Rule 60(b)(6) motion because it "did not exhibit the 'extraordinary circumstances' required to grant Rule 60(b)(6) relief." Id. Because the analyses of Tomlin and Gonzalez were thus "clearly irreconcilable," the Ninth Circuit in Phelps concluded that "Tomlin's per se approach has been overruled" and that a "'case by case inquiry' is required." Id. at 1133-34.
Defendant's reliance on Phelps appears to be two-fold. First, defendant appears to contend that Phelps is itself an intervening change in the governing law and, under its own holding, should direct the court to revisit its November 17, 2008 Order. In other words, defendant argues that Phelps is an intervening change in the law that governs intervening changes in the governing law. Second, defendant contends that since Phelps implicitly contemplates that district courts can re-open cases that have been previously adjudicated by appellate courts if there is an intervening change in the law, this court's conclusion that it had "no jurisdiction to review orders of the [c]court of [a]ppeals" was erroneous. Montalvo, 2008 WL 4937624, at *1.
First, while Phelps clearly signals a change in the law of the Ninth Circuit, Tomlin's per se analysis did not factor into this court's November 17, 2008 Order. As that Order recounts, defendant's prior claim under Rule 60(b)(6) simply reiterated his contention that the judgment of the court of appeals was void pursuant to Rule 60(b)(4). See id. at *2. Therefore, while Phelps indeed modifies the application of Rule 60(b)(6) in certain respects, this court did not have occasion to apply Rule 60(b)(6) in a manner implicated by Phelps's holding.
Nonetheless, the instant motion indicates that the court was not sufficiently indulgent when it considered defendant's previous argument under Rule 60(b)(6). Although defendant did not expressly state that he sought relief under Rule 60(b)(6) due to an intervening change in the law, that argument was reasonably apparent from the tenor of his motion. Furthermore, while the court remains skeptical as to its power to declare a ruling of the court of appeals "void" under Rule 60(b)(4) for lack of jurisdiction,*fn2 defendant correctly notes that Phelps contemplates that district courts may grant relief from a final judgment under Rule 60(b)(6) where an appellate court's ruling in a case has been subsequently abrogated. See Phelps, 569 F.3d at 1128-29, 1141-42 (reversing the district court for failing to grant the petitioner's Rule 60(b)(6) motion, which would have effectively reversed the Ninth Circuit's previous determination that the petition was untimely).
Despite having reconsidered this aspect of the November 17, 2008 Order, the court nonetheless concludes that Rule 60(b)(6) does not provide defendant the relief he seeks because the intervening authority he cites--Greenlaw v. United States, 128 ...