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Wesley William Bowman v. H. A. Rios

July 29, 2011

WESLEY WILLIAM BOWMAN,
PETITIONER,
v.
H. A. RIOS, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION FOR RELIEF FROM THE JUDGMENT (DOC. 9)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a federal prisoner who proceeded pro se in a habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on March 23, 2011 (doc. 5). On April 8, 2011, the Court dismissed the petition for lack of jurisdiction, declined to issue a certificate of appealability, and entered judgment pursuant to the order of dismissal.

Pending before the Court is Petitioner's motion for relief from the judgment pursuant to Fed. R. Civ. P. 60(b)(4), which was filed on May 13, 2011. Petitioner contends that the judgment was void due to plain error as he was actually or factually innocent of the legal requirements for enhancement of his sentence because one prior conviction of tampering with an automobile was not a crime of violence as found by the sentencing court.

I. Motion for Relief from the Judgment of Dismissal A. Legal Standards

Fed. R. Civ. P. 60 applies to habeas proceedings only to the extent that application is not inconsistent with the applicable federal statutes and rules. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (challenge to dismissal of a § 2254 petition for untimeliness).

Here, Petitioner challenges the Court's determination that dismissal of the §2241 petition was required because Petitioner had not shown that his remedy pursuant to 28 U.S.C. § 2255 was inadequate or ineffective. The Court will assume that Rule 60(b) is appropriately applied in Petitioner's case.

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on various grounds, including 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud or misconduct by an opposing party; 4) a void judgment; 5) a satisfied judgment; or 6) any other reason that justifies relief from the judgment. Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within a reasonable time, and with respect to the first three grounds, no more than a year after the entry of the judgment, order, or proceeding. Fed. R. Civ. P. 60(c). 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 (1988). The Ninth Circuit has stated that "[c]lause 60(b)(6) is residual and 'must be read as being exclusive of the preceding clauses.'" LaFarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th Cir. 1981)). Accordingly, "the clause is reserved for 'extraordinary circumstances.'" Id.

Further, when filing a motion for reconsideration, Local Rule 230(j) requires a party to show the "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," as well as "why the facts or circumstances were not shown at the time of the prior motion."

B. Facts

Here, Petitioner alleged that he was an inmate of the United States Penitentiary at Atwater, California (USPA) who challenged his sentence of one hundred (100) months imposed in case number 06-00037-01-CR-W-HFS on September 5, 2006, by the United States District Court for the Western District of Missouri upon Petitioner's conviction of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2). (Pet. 6-7.) Petitioner alleged that the sentencing court enhanced his sentence for having two prior convictions for a crime of violence or a controlled substance offense, when in fact Petitioner had only one such predicate conviction. (Pet. 6.) Petitioner alleged that he was "factually innocent" of the legal requirements for the enhanced sentence because one prior conviction of tampering with an automobile was not a crime of violence as found by the sentencing court. Petitioner prayed that his sentence be vacated and that his case be remanded for resentencing based on only one prior conviction for a controlled substance offense.

Petitioner admitted that prison officials could not grant the relief he requested. (Pet. 3.) He further indicated that he had not filed previous petitions under 28 U.S.C. §§ 2241 or 2255. (Pet. 4.)

C. Analysis

A federal prisoner who wishes to challenge his conviction or sentence on the ground it was imposed in violation of the Constitution or laws of the United States or was otherwise subject to collateral attack must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. 28 U.S.C. § 2255; Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). In such cases, the motion must be filed in the district where the defendant was sentenced because only the sentencing court has jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tripati, 843 F.2d at 1163. Generally, a prisoner may not collaterally attack a federal ...


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