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
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 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. 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
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
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
60(b) would impermissibly circumvent the requirement that a
successive habeas petition
be precertified by the court of appeals as falling within an
exception to the
successive-petition bar. § 2244(b)(3). 4 In most cases, determining
whether a Rule 60(b) motion advances one or more 'claims' 5 will be
relatively simple. A motion that seeks to add a new ground for relief
... will 6 of course qualify. A motion can also be said to bring a
'claim' if it attacks the federal 7 court's previous resolution of a
claim on the merits, since alleging that the court erred 8 by denying
habeas relief on the merits is effectively indistinguishable from
alleging 9 that the movant is, under the substantive provisions of the
statutes, entitled to habeas relief.
Id. at 531-532. However, the Supreme Court ruled:
That is not the case ... when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the ...