ORDER ON PETITIONER'S MOTION FOR RECONSIDERATION, ORDER TO SHOW CAUSE AND RELATED ORDERS
Petitioner Jose Manuel Uribe Solis ("Solis" or "Petitioner") was sentenced to a term of imprisonment of 292 months on May 3, 2002, following his entry of a plea of guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. 841(a)(1), and criminal forfeiture pursuant to 21 U.S.C. 853(a). Solis's first motion to correct, vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 was timely filed on April 29, 2003. The pleading addressed by this order is nominally a motion for reconsideration of the court's order of February 3, 2010, re-characterizing Solis's motion of March 2, 2009, as a second or successive motion pursuant to 28 U.S.C. § 2255 and denying the motion on that account. For the reasons that follow, the court will grant Solis's motion for reconsideration and will address Solis's underlying legal argument that he is entitled to be re-sentenced because he has successfully petitioned in California courts for the expungement or vacatur of three of the four prior state convictions that were used to enhance his sentence.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Solis was convicted by a plea of guilty on August 13, 2001, to one count of conspiracy to distribute methamphetamine. Pursuant to the terms of the negotiated plea agreement, five counts of distribution of methamphetamine and one count of possession with intent to distribute methamphetamine were dropped. Also pursuant to the plea agreement, Solis agreed to the criminal forfeiture of $8,734 that was seized at the time of his arrest. Solis was sentenced on April 29, 2002 to a term of 292 months custody and 60 months supervised release. Judgment was entered on May 3, 2002.
The Presentence Investigation Report ("Presentence Report") that was prepared for Solis' sentencing hearing calculated a base offense level of 38 because more than 15 kilograms of methamphetamine were involved in the offense. The base level was increased by three points for Solis' alleged role as a manager or supervisor of the conspiracy, and three points were deducted because Solis accepted responsibility. Thus, the total offense level was 38. The Presentence Report calculated a criminal history score based on a total of four prior alleged convictions. This score established a criminal history category of III. Based on the 2000 edition of the Guidelines Manual, the guideline range for an offense level of 38 and a criminal history of III was 292 to 365 months. Pursuant to the terms of the plea agreement, Solis was sentenced to the low end of that range.
Solis's petition for writ of habeas corpus pursuant to 28 U.S.C., section 2255 was timely filed on April 29, 2003. Solis's 2255 Motion alleged ineffective assistance of counsel based, inter alia, on the alleged failure of Solis's attorney to investigate the validity of Solis's prior convictions in state court that were used to calculate his criminal history category. Solis's 2255 Motion was denied by the court's order of May 18, 2004. Doc. # 200. On June 7, 2004, Solis filed a request for reconsideration of the court's May 18 order and requested a certificate of appealability. Doc. # 202.
The court did not respond to Solis's requests for reconsideration or for issuance of a certificate of appealability until September 11, 2009. Prior to that date, on March 2, 2009, Solis filed a pleading titled "Motion to Invalidate a Conviction Pursuant to Sentencing Guidelines Section 4A1.2 (hereinafter, the "March 2 Motion"). Solis's March 2 Motion used language that gave the court the impression that Solis was again alleging ineffective assistance of counsel, again based on the failure of Solis's attorney to investigate the state convictions that were used to enhance Solis's sentence. What escaped the court's attention was the fact that Solis's March 2 Motion included exhibits that indicated Solis had succeeded in having three of the prior convictions used to calculate Solis's criminal history category expunged*fn1 .
On September 11, 2010, the court issued an order denying Solis's request for reconsideration and request for certificate of appealability that had been filed on June 7, 2004. The request for reconsideration raised the same issues as were raised in the original 2255 motion and so was denied as a second or successive petition. Unfortunately, the court made an error in docketing that erroneously indicated that the court's order of September 11 was in response to Solis's March 2 Motion, rather than in response to the requests of June 7, 2004. On December 11, 2009, Solis filed a pleading titled "Request [for] Court's Intervention Pursuant to [28 U.S.C. § 453]. On February 3, 2010, the court construed Solis's March 2 Motion as a subsequent or successive motion pursuant to section 2255 and dismissed it. A request for certificate of appealability was also denied. The instant motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure was filed on June 1, 2010.
Rule 60(b) permits a district court to relieve a party from a final order or judgment on grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse party, . . . or (6) any other reason justifying relief from the operation of the judgment." The motion for reconsideration must be made within a reasonable time, in any event "not more than one year after the judgment, order, or proceeding was entered or taken." Id.
Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988).
Rule 59(e) permits a court to alter or amend a judgment where there is clear error or the initial decision was manifestly unjust.
I. Motion for Reconsideration
Solis's instant motion for reconsideration, Doc. # 214, requests review of the court's order of February 3, 2010, that denied Solis's March 2 Motion. Doc. # 209. Solis's March 2 Motion had been interpreted by the court to be a restatement of essentially the same arguments and facts that were advanced by Solis in the portion of his original 2255 Motion that claimed ineffective assistance of counsel on the ground that his attorney failed to investigate the legality of the state criminal convictions that formed the basis for the computation of his criminal history category. That interpretation was driven in part by the wording set forth in the March 2 Motion, which again tended to focus on Solis's attorney's performance, and by the fact that Solis has made these arguments on at least two prior occasions.
Re-characterization of a motion filed by a pro se litigant is within the district court's powers and is frequently used to more precisely match the substance of the pro se claim and its underlying legal basis. Castro v. United States, 540 U.S. 375, 381 (2003); Hughes v. Rowe, 449 U.S. 5, 10 (1980); United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990). The re-characterization of a pro se litigant's motion for reconsideration is significant in the context of post-conviction remedies because re-characterization in that way generally prevents the district court from the exercise of jurisdiction over the pleading pursuant to 28 U.S.C. § 2255(h) (depriving district court of jurisdiction to hear any motion that is deemed a second or successive motion pursuant to section 2255 without authorization of the appellate court). Whether a motion for reconsideration is construed by the court as a second or successive habeas petition depends on whether the motion for reconsideration focuses on the substance of the district court's prior decision or whether the motion for reconsideration attempts to point out a fundamental error in the court's analysis. See Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (where "the factual predicate for a Rule 60(b) motion also states a claim for a successive petition under 28 U.S.C. § 2244(b), [. . .], the Rule 60(b) motion should be treated as a successive habeas petition"). In restricting a pro se litigant's attempt to re-argue the district court's denial of the original section 2255 motion, Congress promotes the policy purpose of finality of judgments by preventing serial re-argument of the same motion under different labels. United States v. Christensen, 119 Fed.Appx. 884, 887 (9th Cir. 2004).
To avoid confusion, it should be understood that there are potentially two levels of re-characterization at issue here. The court has previously re-characterized Solis's March 2 Motion as a second or successive section 2255 motion. In addition to determining whether that re-characterization was correct, the court must also determine whether Solis's instant motion for reconsideration should be re-characterized as a second or successive section 2255 motion. Thus, the court will first make a determination whether Solis's motion for reconsideration of June 1, 2010, should be re-characterized as a second or successive motion pursuant to 28 U.S.C. § 2255. If Solis's motion of June 1 is properly considered second or successive section 2255 motion, then the enquiry ends there. If not, the court will then proceed to decide whether Solis's March 2 Motion was properly re-characterized by the court and, if not, whether and how Solis's March 2 Motion should be re-characterized and whether that motion can be considered on its merits.
Whether it was Solis's sole purpose or not, the main impact of his June 1, 2010, motion for consideration was to bring to the court's attention the fact that legal basis of the argument Solis advanced March 2 Motion was fundamentally different than Solis's previous challenges to his sentence and that the court had overlooked the crucial fact that Solis had presented evidence of expungement of state prior convictions. The court has examined both the evidence presented as exhibits in the March 2 Motion and finds that the court's oversight of these pieces of evidence constitutes clear error. Thus, the effect of Solis's motion for reconsideration is not to reargue claims that were previously decided by the court, but to point out that claims and evidence were submitted in the March 2 Motion that were mistakenly overlooked in the court's June 1 Order. Thus, the court finds Solis's motion for reconsideration of the court's Order of June 1, 2010, is proper and re-characterization of the motion is not warranted. The court also finds that the court's oversight of both evidence and argument in the court's order of June 1, 2010, amounts to clear error and that reconsideration of that order is warranted.
Solis's instant motion for reconsideration of the court's order of June 1, 2010 is hereby GRANTED.
II. Solis's March 2 Motion
Solis's March 2 Motion was re-characterized by the court As a second or successive motion pursuant to 28 U.S.C. § 2255 and was dismissed on that basis. Upon reconsideration, the court must examine whether Soliss' March 2 Motion should be re-characterized, and if so how. Similarly, before the court can reach the merits of Solis's motion the court must consider whether the motion is second or successive and whether it is timely. The court will consider each of these preliminary issues in turn.
A. Re-Characterization and Construal
As noted above, district courts have authority to re-characterize pro se pleadings to achieve, among other purposes, a closer match between the pleading and the underlying law and facts that support it. Solis's March 2 Motion is titled "Motion to Invalidate a Conviction Pursuant to Sentencing Guidelines 4A1.2 Note 6." Obviously, the sentencing guidelines provide no authority for the invalidation of a conviction. Similarly, Solis's March 2 Motion invokes no authority to accomplish what the title seeks. By its own term, the title of Solis's March 2 Motion challenges his conviction or, more accurately, his sentence. The general jurisprudence of district courts holds that any post conviction pleading other than an appeal that challenges the validity of a conviction or sentence is properly construed as a motion pursuant to 28 U.S.C. § 2255. See United States v. Christensen, 119 Fed. Appx. 884, 887-888 (9th Cir. 2004) (noting practice of district courts construing ...