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November 24, 2010


The opinion of the court was delivered by: Audrey B. Collins Chief United States District Judge


Pending before the Court is Mamdouh Bahna's ("Defendant") Rule 60(b) Motion to Vacate Order Denying Section 2255 Motion ("Motion"), filed on August 30, 2010 (docket no. 41.) The Government filed an Opposition on October 4, 2010 (docket no. 418, case no. 05-982), and Defendant filed a Reply on October 25, 2010 (docket no. 50). The Court finds this Motion appropriate for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Having considered the materials submitted by the parties and the case file, the Court DENIES Defendant's Motion.


The background of this case is set out at length in the Government's Opposition. (See Opp'n pp. 1-11.) In brief, Defendant was sentenced to 58 months imprisonment after pleading guilty to one count of health care fraud. Thereafter, Defendant filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence in which he argued that his former counsel Terry Bird and Jason Kogan provided ineffective assistance because they did not sufficiently inform him of the consequences of his plea. Specifically, Defendant claimed that his former counsel did not inform him that he could be sentenced to prison for more than 18 months and that he was waiving his right to appeal any sentence of less than 87 months.

The Court conducted an evidentiary hearing on the § 2255 motion on November 12, 2008, in which Defendant, his wife Hanny, and his former counsel, among others, testified. On February 11, 2009, the Court entered a 29-page Order denying Defendant's § 2255 motion. Therein, the Court found "wholly incredible" Defendant's testimony attributing various failures to his attorneys and claiming he did not know what he was getting into when he signed his plea agreement. The Court also found Hanny Bahna's testimony not credible. The Court did find the testimony of Mr. Bird and Mr. Kogan to be credible. They testified to the effect that Defendant participated intelligently in the plea process. The Court also summarized the facts showing the assistance Defendant received in connection with his decision to accept the plea. Finally, the Court applied the two-part Strickland test and concluded that Defendant's ineffective assistance claim failed because he could not show that his counsel's performance fell below an objective standard of reasonableness. The Court also found that Defendant's decision to plead guilty was the result of a voluntary and intelligent choice among available alternatives, and rejected Defendant's assertion that his counsel's efforts to advise him were futile because of his alleged impairments stemming from his health problems.

Now before the Court is Defendant's Rule 60(b) Motion. Therein, Defendant argues that the Court's February 11, 2009 Order denying his § 2255 motion should be vacated on several grounds. First, Defendant asserts that the Order was the result of a fraud upon the Court. Defendant contends that someone -- whether the Court, the court reporter, counsel, or all of them is not clear -- redacted the transcript, and as a result three portions of Defendant's testimony are missing from the transcript. Second, Defendant faults the Court's determination that Mr. Bird and Mr. Kogan were credible, stating the Court was biased in their favor and that the decision was erroneous. Third, Defendant states that his post-assistance counsel, Victor Sherman, provided ineffective assistance in connection with his § 2255 motion.


To prevail on a motion for relief from judgment brought under Rule 60(b), the moving party must show (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief from operation of the judgment. See Fed. R. Civ. P. 60(b).

Defendant here appears to be moving on the basis of Rule 60(b)(3), or, alternatively, Rule 60(b)(6). "To prevail [on a Rule 60(b)(3) motion], the moving party must prove by clear and convincing evidence that the [judgment] was obtained through fraud, misrepresentation, or other misconduct[.]" Casey v. Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir.), cert. denied, 543 U.S. 870, 125 S.Ct. 108 (2004). Relief under Rule 60(b)(6) requires a finding of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641, 2650 (2005) (internal quotation marks omitted); Phelps

v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009), cert. denied, 130

S.Ct. 1072 (2010).

A. Neither Defendant's Attack on the Court's Credibility Findings, Nor his Claim that Post-Conviction Counsel Was Ineffective, Are Cognizable Under Rule 60(b).

Before addressing the merits of Defendant's Rule 60(b) Motion,

the Court must determine whether his claims are cognizable. Rule 60(b) applies in habeas proceedings only to the extent that it is not inconsistent with applicable federal habeas statutes and rules. Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Rule 60(b) is not an alternative to review by appeal; nor can it be used to circumvent the limitations on successive habeas petitions or the rules governing the appeal of § 2255 orders. Id. at 531-532 (discussing Rule 60(b) to appeal § 2254 orders and holding that Rule 60(b) motions cannot circumvent the "second or successive" habeas petition requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)); see also Phelps v. Alameda, 569 F.3d 1120 (9th Cir. 2009) (discussing Gonzalez in reference to Rule 60(b) motions ...

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