The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S SECOND MOTION TO RE-OPEN SECTION 2255 MOTION PURSUANT TO RULE 60(b), FEDERAL RULES ) OF CIVIL PROCEDURE
On December 20, 2010, Petitioner John Allen Newton, proceeding in pro per, filed a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure, to re-open his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner was convicted by jury trial of two counts of carjacking in violation of 18 U.S.C. § 2119, two counts of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924, and one count of being a felon in possession of a firearm in 1 violation of 18 U.S.C. § 922. Petitioner was sentenced on 2 September 26, 1994 to a total of 465 months incarceration. 3 Petitioner filed an appeal to the Ninth Circuit. In United 4 States v. Newton, 65 F.3d 810 (9th Cir.1995), cert. denied, 516 5 U.S. 1137 (1996), the Ninth Circuit affirmed Petitioner's 6 convictions. 7 Petitioner filed a motion to vacate, set aside or correct 8 sentence pursuant to 28 U.S.C. § 2255 on December 17, 1996, 9 asserting newly discovered evidence and ineffective assistance of counsel based on counsel's failure to call certain family witnesses at trial and failure to file a motion to suppress. Petitioner's Section 2255 motion was denied by Order filed on January 30, 1996. A certificate of appealability was denied by the District Court on July 22, 1997 and by the Ninth Circuit on November 11, 1997.
On February 7, 2008, Petitioner filed a "Motion to Reopen a 28 United States Code § 2255 Via Federal Rule Civil Procedure 60(b)(4) For the sole purpose ... To obtain a vactur [sic] of a judgment enter [sic] without 'Subject-Matter jurisdiction.' By Memorandum Decision and Order filed on May 26, 2008, Petitioner's motion to re-open his Section 2255 motion was denied. Petitioner's motion to re-open contended that the car identified in Counts 3 and 4 of the Indictment were never transported, shipped, or received by anyone in interstate commerce; that affidavits executed in October 1996 establish Petitioner's actual innocence of carjacking; and that Counts 2 and 4 charging him 1 with use of a firearm during a crime of violence specify simple 2 possession of the weapon, which does not fit the elements of 18 3 U.S.C. § 924(c). Petitioner's motion to re-open was denied on 4 the merits by Order filed on May 26, 2010. 5 On November 26, 2008, Petitioner filed a motion to 6 reconsider the May 26, 2008 Order pursuant to Rule 60(b)(4) and 7 (6). Petitioner's motion to reconsider was denied on the grounds 8 that Petitioner was using the vehicle of Rule 60(b) to re-argue 9 issues decided against him and to raise new claims not previously asserted on appeal or for Section 2255 relief. Petitioner's motion was construed as a second or successive Section 2255 motion over which the District Court lacks jurisdiction to consider the merits absent prior authorization from the Ninth Circuit. To the extent Petitioner's motion to reconsider asserted Petitioner was entitled to relief pursuant to Amendment 599 to the Sentencing Guidelines, Petitioner's motion was considered on the merits and denied. No appeal was taken by Petitioner from the denial of his motion to re-open or his motion to reconsider.
B. Current Motion to Re-Open.
Petitioner again moves to re-open his Section 2255 motion on the ground that "counts 2 and 4, charging him with use of a firearm during a crime of violence clearly specify simple possession of a Norinco 9mm semi-automatic handgun, and that these specified acts of simple possession do not fit the criteria under Title 18 U.S.C. 924(c)." Petitioner cites Castillo v. 1 United States, 530 U.S. 120 (2000), and contends that the 2 "intervene [sic] change of the laws establish that mandatory 3 minimum sentences implicates the Sixth Amendment right to a jury 4 trial." 5 In Castillo, the Supreme Court examined Section 924(c)(1) 6 before it was amended in November 1998. The Supreme Court ruled: 7 The statute in question, 18 U.S.C. § 924(c), prohibits the use or carrying of a 'firearm' 8 in relation to a crime of violence, and increases the penalty dramatically when the 9 weapon used or carried is, for example, a 'machinegun.' We conclude that the statute uses the word 'machinegun' (and similar words) to state an element of a separate offense' the result of which is 'the indictment must identify the firearm type and a jury must find that element proved beyond a reasonable doubt.' 530 U.S. at 121, 123.*fn1
In Gonzalez v. Crosby, 545 U.S. 524 (2005), 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.
See United States v. Wiseman whether Castillo is retroactive
1 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and
2 seek leave to present that claim ...
Similarly, a motion might seek leave to
3 present 'newly discovered evidence,' Fed. Rule Civ. Proc. ...