United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO "CORRECT
M. CHEN, United States District Judge
No. 104 On June 20, 2016, Defendant Gregory Walker filed the
instant "Motion to Correct Judgment" pursuant to
Federal Rule of Civil Procedure 60. Docket No. 104 (Mot.).
Mr. Walker was convicted by a jury of being a felon in
possession of ammunition, in violation of 18 U.S.C. §
1922(g)(1). Docket No. 88. On November 14, 2011, Judge Conti
sentenced Mr. Walker to an imprisonment of a term of 108
months, having applied a cross-referenced attempted murder
guideline and calculated an offense level of 27.
Id.; see also Docket No. 91 (Nov. 14, 2011
Trans.) at 13:16-23, Docket No. 96 (9th Cir. Mem. of
Disposition) at 3. Mr. Walker contends that Judge Conti erred
in finding the calculating a base offense level of 27 based
on attempted murder, and seeks to correct his sentence. Mot.
at 4. For the reasons stated below, the Court DENIES the
motion to correct.
Mr. Walker improperly seeks relief under Federal Rule of
Civil Procedure 60(a). Mot. at 1. Rule 60(a) concerns
clerical mistakes, and "[i]n determining
whether a mistake may be corrected under Rule 60(a), our
circuit focuses on what the court originally intended to
do." Tattersalls, Ltd. v. Dehaven, 745
F.3d 1294, 1297 (9th Cir. 2014). Thus, the distinction
between "'clerical mistakes' and mistakes that
cannot be correct pursuant to Rule 60(a) is that the formal
consists of 'blunders in execution' whereas the
latter consist of instances where the court changes
its mind." Id. Here, Mr. Walker is
arguing that Judge Conti erred in applying an adjusted
offense level of 27, a substantive error that is distinct
from a clerical error where the judgment reflects something
different from what Judge Conti had intended. Thus, Rule
60(a) does not apply. See United States v. Quintero,
No. CR-F-02-5379 OWW, 2010 U.S. Dist. LEXIS 124460, at *2
(E.D. Cal. Nov. 22, 2010) (finding that Rule 60(a) "is a
vehicle for correcting clerical mistakes, but it may not be
used to correct judicial errors in sentencing")
Mr. Walker's motion is more properly construed as a
section 2255 habeas claim. As a general matter, 28 U.S.C.
§ 2255 "provides the exclusive procedural mechanism
by which a federal prisoner may test the legality of
detention." Lorentsen v. Hood, 223 F.3d 950,
953 (9th Cir. 2000); Tripati v. Henman, 843 F.2d
1160, 1162 (9th Cir. 1988) ("A section 2255 motion to
the sentencing court is generally the appropriate vehicle for
challenging a conviction"). The Supreme Court has
recognized that a Rule 60(b) motion can be used to challenge
"not the substance of the federal court's resolution
of a claim on the merits, but some defect in the integrity of
the federal habeas proceedings, " e.g., fraud
on the federal habeas court. Gonzalez v. Crosby, 545
U.S. 524, 532 (2005); see also United States v.
Washington, 653 F.3d 1057, 1063 (9th Cir. 2011).
However, here Mr. Walker's motion is a quintessential
habeas claim, in which he directly challenges Judge
Conti's sentencing and requests that his sentence be
corrected. Mot. at 4. Thus, the Court considers his motion as
a section 2255 habeas claim. Compare with United States
v. Gardner, No. CR-F-01-5404 OWW, 2007 U.S. Dist. LEXIS
85842, at *6-8 (E.D. Cal. Nov. 7, 2007) (finding that the
petitioner's Rule 60(b) motion for resentencing was
actually a section 2255 motion, as it did not concern a
defect in the integrity of the federal habeas proceedings);
Wilson v. Ives, No. CV 09-5795-ODW (MAN), 2010 U.S.
Dist. LEXIS 56236, at *15-16 (C.D. Cal. May 19, 2010)
(finding that Rule 60(b) did not apply where the petitioner
was challenging and seeking to modify his criminal sentence).
Mr. Walker's motion as a section 2255 habeas claim, the
Court must deny the motion as untimely. Section 2255 has a
one-year period of limitation, which runs from the latest of:
(1) the date on which the judgment of conviction became
final, (2) the date on which the impediment to making the
motion created by governmental action in violation of the
Constitution or United States law is removed (if the movant
was prevented from making a motion by that governmental
action), (3) the date on which the right asserted was
initially recognized by the Supreme Court, and (4) the date
on which the facts supporting the claims could have been
discovered through the exercise of due diligence. 28 U.S.C.
§ 2255. Here, Mr. Walker's motion was filed in June
2016, whereas the judgment in this case was entered over four
years ago in November 2011. Mr. Walker does not claim there
was any impediment to making the instant motion, and the
Supreme Court case he relies upon, Apprendi v. New
Jersey, 530 U.S. 466 (2000) is over fifteen years old.
Finally, there is no indication that the facts supporting Mr.
Walker's claims could not be discovered until this past
year; in fact, it appears that Mr. Walker challenged Judge
Conti's application of the attempted murder guideline in
calculating the Guidelines range in his appellate challenge,
which the Ninth Circuit rejected in December 2012.
See 9th Cir. Mem. of Disposition) at 3. In short,
Mr. Walker fails to satisfy the one-year limitation period.
Court therefore finds that Mr. Walker's motion is
untimely and DENIES the motion to correct the judgment.
order disposes ...