ORDER ON PETITIONER'S MOTION TO SET ASIDE ORDER ON PETITIONER'S 28 U.S.C. § 2255 PETITION (Crim. Doc. No. 108)
Currently before the Court is Petitioner's motion to set aside judgment under Federal Rules of Civil Procedure 60(b)(4), (6), and (d). See Doc. No. 108. For the reasons that follow, the motion will be denied.
On May 22, 2009, this Court issued an order that denied Petitioner's 28 U.S.C § 2255 petition. See Doc. No. 98. On June 19, 2009, the Court denied Petitioner's Rule 59/Rule 60 motion for reconsideration on the basis that the motion was a successive § 2255 petition. See Doc. No. 100.
On July 6, 2009, Petitioner filed an appeal. See Doc. No. 102. On October 26, 2009, the Court denied Petitioner's request for a certificate of appealability. See Doc. No. 104.
On May 18, 2011, the Ninth Circuit denied Petitioner's request for a certificate of appealability. See Doc. No. 107. The Ninth Circuit denied the certificate of appealability after receiving Petitioner's additional citation to and reliance on Padilla v. Kentucky , 130 S.Ct. 1473, 1480-81 (2010). See Ninth Circuit Docket Doc. No. 5 in Case No. 09-16635 (hereinafter "Ninth Doc."). On June 15, 2011, Petitioner filed a motion of reconsideration with the Ninth Circuit.
See Ninth Doc. No. 7. On July 19, 2011, the Ninth Circuit denied Petitioner's request for reconsideration and refused to accept further filings in that closed case. See Ninth Doc. No. 8.
Petitioner argues that he is entitled to relief through Rule 60(b) in light of the intervening case of Padilla and because this Court acted in a manner that deprived him of his opportunity to be heard on his claims of ineffective assistance of counsel. Petitioner argues that the May 2009 judgment is void because it was rendered in a manner that is inconsistent with due process since it deprived him of his opportunity to be heard on his ineffective assistance of counsel claim. Petitioner argues that his counsel was ineffective because he did not advise Petitioner of the mandatory 5 year consecutive sentence on Count Three of the indictment, i.e. 18 U.S.C § 924(c). Padilla arguably creates a per se rule that counsel must inform their clients of sentencing consequences before an informed plea may be entered, and counsel violated this obligation. Alternatively, counsel was ineffective for not explaining the sentencing consequences. That failure was prejudicial because Petitioner argues that he would not have accepted the plea since the evidence did not support the elements of the Count Three crime. Petitioner also states that his counsel did not advise him of the elements of § 924(c) or advise him of any strategic basis for pleading guilty. Finally, Petitioner states that this Court did not adjudicate on the merits the claim that counsel was ineffective for failing to advise him of the 5 year consecutive sentence.
Legal Standard "A petitioner is generally limited to one motion under § 2255, and may not bring a 'second or successive motion' unless it meets the exacting standards of 28 U.S.C. § 2255(h)." United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). That section reads:
A second or successive motion must be certified as provided in section 2244 [28 USC § 2244] by a panel of the appropriate court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). To avoid § 2255(h), petitioners will often attempt to characterize their motions in a way that avoids the requirements of § 2255(h). See Washington, 653 F.3d at 1059.
For example, petitioners sometimes attempt to characterize their motions as brought under Rule 60(b), which allows a party to seek relief from a final judgment and to reopen his case on limited grounds, for example that the judgment was void (under Rule 60(b)(4)) or that extraordinary circumstances support relief. See id. at 1059-60; United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011). "When a Rule 60(b) motion is actually a disguised second or successive § 2255 motion, it must meet the criteria set forth in § 2255(h)." Washington, 653 F.3d at 1059-60; Buenrostro, 638 F.3d at 722. Whether a motion is in fact a disguised § 2255 motion is governed by the analysis of Gonzalez v. Crosby , 545 U.S. 524 (2005). See Washington, 653 F.3d at 1062; Buenrostro, 638 F.3d at 722. Generally, a motion that attacks a defect in the integrity of the federal habeas proceeding is not a disguised § 2255 motion, but may instead be classified as a legitimate Rule 60(b) motion. See Washington, 653 F.3d at 1059-60; Buenrostro, 638 F.3d at 722. For example, fraud on the Court is a legitimate Rule 60(b) basis/motion. See Gonzalez, 545 U.S. at 532 n.5; Washington, 653 F.3d at 1063. Further, claims that a procedural error prevented a presentation of claims on the merits, such as a ruling that there was a failure to exhaust, or a procedural default, or a statute of limitations bar, properly may be brought in a Rule 60(b) motion. See Gonzalez, 545 U.S. at 532 n.4; Washington, 653 F.3d at 1063. However, "if the motion presents a 'claim,' i.e. 'an asserted federal basis for relief from a . . . judgment of conviction,' then it is, in substance, a new request for relief on the merits and should be treated as a disguised § 2255 motion." Washington, 653 F.3d at 1063 (citing Gonzalez, 545 U.S. at 530); see also Buenrostro, 638 F.3d at 722. Examples of "claims" include: a motion asserting "that owing to 'excusable neglect,' the movant's habeas petition had omitted a claim of constitutional error,"; a motion to present "newly discovered evidence" in support of a claim previously denied; a contention "that a subsequent change in substantive law is a 'reason justifying relief' from the previous denial of a claim,"; a motion "that seeks to add a new ground for relief,"; a motion that "attacks the federal court's previous resolution of a claim on the merits,"; a motion that otherwise challenges the federal court's "determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief,"; and finally, "an attack based on the movant's own conduct, or his habeas counsel's omissions."
Washington, 653 F.3d at 1063 (quoting Gonzalez, 545 U.S. at 530-32). "[I]f a pleading labeled as a Rule 60(b) motion includes such claims, it 'is in substance a successive habeas petition and should be treated accordingly.'" Gonzalez, 545 U.S. at 531; Washington, 653 F.3d at 1063. In essence, where the integrity of the proceedings is not challenged, but the motion "in effect asks for a second chance to have the merits determined favorably, then the motion is raising a 'claim' that takes it outside the purview of Rule 60(b)." Washington, 653 F.3d at 1063. If § 2255(h) applies, but a petitioner has not ...