The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner, a federal prisoner, has filed a motion pursuant to Federal Rule of Civil Procedure 60 to set aside the court's March 20, 2008 order denying petitioner's motion under 28 U.S.C. § 2255 to vacate his sentence. ECF No. 213. This is petitioner's second Rule 60 motion seeking to set aside the court's March 20, 2008 order. See ECF Nos. 200, 201.
Petitioner has also filed an "Application for Writ of 'Audita Querela' Due to Intervening Change in Law by the Ninth Circuit." ECF No. 215. Petitioner invites the court to construe the application as a motion to vacate petitioner's judgment and sentence pursuant to 28 U.S.C. § 2255. See id. at 1, n. 1.
In both motions, petitioner challenges the enhancement added to his federal drug trafficking sentence based upon his prior state drug conviction. Because both motions challenge petitioner's sentence, and because this court has previously denied on the merits a motion to vacate petitioner's sentence under 28 U.S.C. § 2255, the undersigned recommends that the court dismiss the motions as unauthorized successive applications for relief, pursuant to 28 U.S.C. § 2255(h).
On May 12, 2004, a jury convicted petitioner of 2 counts of conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. ECF Nos. 118, 119. On July 30, 2004, the district court sentenced petitioner to two terms of 240 months, one for each count, to be served concurrently. ECF Nos. 127, 131. On July 11, 2006, the Court of Appeals for the Ninth Circuit affirmed the conviction and sentence. ECF No. 152.
On December 4, 2006, petition filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. ECF No. 168. On March 21, 2008, the district court denied petitioner's § 2255 motion. ECF No. 193. Petitioner applied to the Court of Appeals for a certificate of appealability (ECF No. 194), which request was denied on April 10, 2009. ECF No. 199.
On June 9, 2010, petitioner moved to set aside the court's denial of his § 2255 motion pursuant to Federal Rule of Civil Procedure 60(b)(4). ECF No. 200. On June 25, 2010, the district court denied petitioner's Rule 60 motion. ECF No. 201. On July 8, 2010, petitioner moved for reconsideration of the Rule 60 denial (ECF No. 202), which motion was denied on July 27, 2010. ECF No. 203. On September 7, 2010, petitioner appealed the district court's orders denying his Rule 60 motion and denying reconsideration. ECF No. 204. On July 6, 2011, the Court of Appeals denied petitioner's request for a certificate of appealability. ECF No. 212.
On July 25, 2012, petitioner filed a second Rule 60(b) motion to set aside the court's prior denial of his § 2255 motion to vacate. ECF No. 213. On March 20, 2013, petitioner filed the application for writ of audita querela. ECF No. 215.
The Rule 60(b) Motion (ECF No. 213)
Petitioner seeks to set aside, pursuant to Federal Rules of Civil Procedure 60(b)(4), (5), and (6), this court's March 20, 2008 order denying his motion to vacate his judgment and sentence. In essence, petitioner argues that his state drug conviction did not qualify as a felony drug offense for the purposes of enhancing his sentence under 21 U.S.C. § 841. Petitioner alleges that the court's 2008 order was inconsistent with Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), and accordingly the 2008 order represents a miscarriage of justice. Petitioner also alleges that he is "'actually innocent' to a ten-year sentencing enhancement. . . ."
The Application for Writ of Audita Querela (ECF No. 215)
Petitioner argues that he seeks a writ of audita querela in order to obtain relief which he cannot obtain under any other post-conviction remedy. Petitioner also asks that the court construe this motion as one made pursuant to 28 U.S.C. § 2255. In essence, petitioner argues that his sentence was illegally enhanced, pursuant to a recent case decided by the ...