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Acosta v. United States

United States District Court, Ninth Circuit

July 30, 2013

FRANK PATRICK ACOSTA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DENYING PETITIONER'S MOTION TO REOPEN AND FOR RELIEF FROM PREMATURE DENIAL OF FULL AND FAIR HEARING ON HIS HABEAS PETITION PURSUANT TO 28 U.S.C. § 2255 [CV ECF No. 18]

ALICEMARIE H. STOTLER, District Judge.

I.

PROCEDURAL BACKGROUND

On April 18, 2002, Frank Acosta ("petitioner") and Elizabeth Madrigal, his spouse, were indicted for their participation in a scheme to defraud the United States Department of Housing and Urban Development ("HUD") by submitting fraudulent home loan applications. On December 19, 2002, the government filed a First Superseding Indictment against petitioner and Madrigal. Madrigal entered into a plea agreement with the government, which was filed on August 21, 2003. Petitioner's first jury trial began on August 26, 2003, and lasted twelve days. On September 16, 2003, the Court declared a mistrial and set the matter for retrial.

On February 26, 2004, the government filed a twenty-six count Second Superseding Indictment against petitioner charging violations of 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1343 (false statements to the government), 18 U.S.C. § 1956 (money laundering), and 18 U.S.C. § 1512(b)(3) (witness tampering). Petitioner's second jury trial began on February 15, 2005. On March 2, 2005, the Court granted petitioner's Federal Rule of Criminal Procedure 29 motion as to count 26 (witness tampering). On March 10, 2005, after a thirteen-day jury trial, petitioner was found guilty on all remaining counts. On May 23, 2005, represented by new attorneys, petitioner moved for a judgment of acquittal or, alternatively, a new trial. On June 13, 2005, the Court denied petitioner's motion and sentenced him to a term of 60 months imprisonment and three years of supervised release. The Court also ordered petitioner to pay a special assessment of $2, 500 and restitution in the amount of $1, 395, 572.70. The foregoing proceedings were presided over by the Honorable Dickran M. Tevrizian, United States District Judge, retired.

On June 21, 2005, petitioner appealed. On February 27, 2007, the Court of Appeals for the Ninth Circuit affirmed petitioner's conviction, but vacated his sentence and ordered the matter remanded for resentencing. On June 14, 2007, the Ninth Circuit denied his petition for rehearing and the petition for rehearing en banc. On June 29, 2007, the Ninth Circuit granted petitioner's motion to stay the mandate pending the filing of a petition for writ of certiorari in the United States Supreme Court. On October 9, 2007, the Supreme Court denied the petition for writ of certiorari.

Upon resumption of proceedings in the district court, the matter was reassigned to this Court's docket. On July 6, 2009, the Court sentenced petitioner to a term of 78 months imprisonment and three years of supervised release. The Court also ordered petitioner to pay a special assessment of $2, 100 and restitution in the amount of $1, 364, 214.60.

On July 6, 2010, petitioner filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("2255 Motion") on the grounds that he was denied effective assistance of counsel. The Court ordered a briefing schedule. On December 13, 2010, after two requests for an extension of time, the government filed its opposition. Petitioner requested an extension of time to file his reply to the government's opposition three times; the last request having been filed on June 20, 2011. Petitioner did not file a reply by August 3, 2011, the last deadline set by the Court. On December 14, 2011, the Court denied petitioner's 2255 Motion. The Court also denied any request for a certificate of appealability. On July 11, 2012, the Ninth Circuit denied petitioner's request for a certificate of appealability.

On February 24, 2012, attorney Ezekiel Cortez entered an appearance on behalf of petitioner in this Court. On February 26, 2013, petitioner's new counsel filed a Motion to Reopen and for Relief from Premature Denial of Full and Fair Hearing on His Habeas Petition Pursuant to 28 U.S.C. § 2255 ("Motion to Reopen"). On March 6, 2013, the Court ordered a briefing schedule. On April 8, 2013, after being granted an extension of time, the government filed its opposition. On May 8, 2013, after being granted an extension of time, petitioner filed his reply.

II.

SUMMARY OF PARTIES' CONTENTIONS

Petitioner contends that the Court did not give him an opportunity to meaningfully respond to the government's opposition to his 2255 Motion. Petitioner requests the opportunity "to supplement his first petition with a [reply] now that he is finally represented by legal counsel." (Pet'r's Mot. Reopen 8, CV ECF No. 18.)[1] According to petitioner, recent developments in the law support his request. (Id. at 18-19.) Finally, petitioner argues that the Court held him to "too high a standard for a pro se party" and improperly declined to hold an evidentiary hearing on his 2255 Motion. (Id. at 9, 11-12.)

The government contends that petitioner's Motion to Reopen constitutes an improper second or successive § 2255 motion. (Gov't's Opp'n 8-9, CV ECF No. 23.) But even if the Court does not construe the Motion to Reopen as such, the government argues, petitioner is not entitled to the requested relief because he had no right to counsel in the § 2255 proceeding. (Id. at 10.) Finally, the government argues that the Court held petitioner to the correct ...


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