U.S. v. Fulton Leroy Wash.

• Decision Date: 08 August 2011
• Docket Number: No. 09–56569.,09–56569.
• Citation: 653 F.3d 1057,2011 Daily Journal D.A.R. 11891,11 Cal. Daily Op. Serv. 9975
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Fulton Leroy WASHINGTON, AKA Larry W. Scott, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

653 F.3d 1057

11 Cal. Daily Op. Serv. 9975

2011 Daily Journal D.A.R. 11,891

UNITED STATES of America, Plaintiff–Appellee,

v.Fulton Leroy WASHINGTON, AKA Larry W. Scott, Defendant–Appellant.

No. 09–56569.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2011.Filed Aug. 8, 2011.

Michael J. Treman, Santa Barbara, CA, for appellant Fulton Leroy Washington.Patrick R. Fitzgerald, Assistant United States Attorney, Los Angeles, CA, for appellee United States of America.Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. Nos. 2:01–cv–08491–DDP, 2:96–cr–00557–DDP–4.Before: DIARMUID F. O'SCANNLAIN and SANDRA S. IKUTA, Circuit Judges, and LAWRENCE L. PIERSOL, Senior District Judge.^*

OPINION

IKUTA, Circuit Judge:

Fulton Leroy Washington has challenged (or attempted to challenge) his conviction four times: on direct appeal, in his first motion under 28 U.S.C. § 2255, in a second § 2255 motion, and now in a motion purportedly under Rule 60(b)(4) of the Federal Rules of Civil Procedure. This appeal requires us to determine whether the district court had jurisdiction to hear Washington's self-styled Rule 60(b) motion, or whether the court should have dismissed it for lack of jurisdiction because it was actually a disguised third request for relief under § 2255 that did not meet the standard in § 2255(h) for second or successive motions brought under that section.

I

In November 1996, following a jury trial, Washington was convicted of conspiring to manufacture one kilogram or more of a substance containing phencyclidine (PCP) in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession of approximately eleven kilograms of piperidinocyclohexanecarbonitrile (PCC) with intent to manufacture PCP, in violation of § 841(a)(1); and attempted manufacture of more than one kilogram of a substance containing PCP in violation of §§ 841(a)(1) and 846. The jury did not make any finding as to the quantity of drugs attributable to Washington. At sentencing, the district court found by a preponderance of the evidence that Washington had possessed 108.86 grams of PCP, a finding that, in concert with Washington's prior convictions, triggered a mandatory term of life imprisonment under § 841(b)(1). We affirmed his conviction in an unpublished disposition. SeeUnited States v. O'Neal, 213 F.3d 644 (9th Cir.2000) (unpublished).

Washington then commenced a series of collateral challenges to his conviction. Because a clear understanding of the nature of these challenges is necessary to resolve Washington's appeal, we first briefly explain the procedural framework for such challenges, and then explain the history of Washington's collateral challenges to his conviction in some detail.

A

A federal prisoner who is “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States,” 28 U.S.C. § 2255(a), may file a § 2255 motion with the district court that imposed the sentence. “As a general rule, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir.2008) (quoting Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000)) (internal quotation marks omitted). If the district court denies relief, the petitioner may not appeal that denial without first obtaining a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(B). In order to obtain such a certificate, the petitioner must make “a substantial showing of the denial of a constitutional right” as to each issue the prisoner seeks to appeal. 28 U.S.C. § 2253(c)(2), (3).

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). This section provides that such a motion cannot be considered unless it has first been certified by the court of appeals to contain either “(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.” Id. § 2255(h).

Because of the difficulty of meeting this standard, petitioners often attempt to characterize their motions in a way that will avoid the strictures of § 2255(h)—for example, by characterizing their motions as habeas petitions under 28 U.S.C. § 2241, which a petitioner may file without obtaining authorization from the court of appeals. A petitioner may file pursuant to § 2241 “if the remedy provided by § 2255 is ‘inadequate or ineffective to test the legality of his detention.’ ” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir.2011) (quoting 28 U.S.C. § 2255(e)); see also Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.2006) (explaining that a § 2241 petition may be filed “when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim” (citation and internal quotation marks omitted)).

In addition, petitioners may also characterize their pleading as being a motion under Rule 60(b) of the Federal Rules of Civil Procedure, which “allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances,” Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), including, as relevant here, that the initial judgment was “void,” Fed.R.Civ.P. 60(b)(4).¹ 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). Gonzalez, 545 U.S. at 528, 125 S.Ct. 2641. But the Supreme Court has not adopted a bright-line rule for distinguishing between a bona fide Rule 60(b) motion and a disguised second or successive § 2255 motion, instead holding that a Rule 60(b) motion that attacks “some defect in the integrity of the federal habeas proceedings” is not a disguised § 2255 motion but rather “has an unquestionably valid role to play in habeas cases.” Id. at 532, 534, 125 S.Ct. 2641; see also United States v. Buenrostro, 638 F.3d 720, 722–23 (9th Cir.2011) (per curiam). Washington attempted to bring his challenge under the auspices of Rule 60(b), as discussed in more detail below.

B

On October 1, 2001, Washington filed his first motion under 28 U.S.C. § 2255, which was assigned to Judge Byrne, the district judge who had presided over the trial and sentencing. During the pendency of the motion, Judge Byrne passed away, and the matter was reassigned to Judge Tevrizian. In that motion, Washington raised sixteen issues, only two of which are relevant here. First, he argued that he was actually innocent of the crimes for which he was convicted because he did not match the police description of the suspect. Specifically, Washington alleged that he was approximately 6 inches taller than the suspect, that there were crucial gaps in the government's surveillance that prevented the government from being able to link Washington to the crime, and that Washington's co-defendants had attested to his innocence. Second, Washington argued that his rights under the Confrontation Clause had been violated when the court allowed the government to introduce wiretaps of conversations by his co-conspirators, during which they referred to “Wash,” a nickname ultimately connected to Washington and used to tie him to the crimes.

Judge Tevrizian denied Washington's § 2255 motion on February 2, 2006, in a thorough and lengthy order which considered some of Washington's many claims in detail, while disposing of others, such as his actual innocence and Confrontation Clause claims, with the statement, “[a]ny argument that Washington raised in his petition, but is not specifically discussed herein, is deemed meritless.” Washington filed a notice of appeal, but both the district court and this court declined to grant him a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(B). Unable to appeal the district court's denial of the first § 2255 motion, Washington filed a second § 2255 motion in the district court on June 22, 2006. The district court denied it on the ground that it was an unauthorized second or successive motion. See 28 U.S.C. § 2255(h). We declined to issue a certificate of appealability.

Having failed to obtain authorization to appeal the denial of his first § 2255 motion, and unable to avoid the barriers to judicial review of his second § 2255 motion, Washington took a new approach. On July 9, 2007, he filed a “Motion Pursuant to Federal Rules of Civil Procedure 63, 60(b)(6), and 60(b)(4),” which did not challenge his conviction or sentence, but rather sought to vacate Judge Tevrizian's February 2, 2006 order denying his initial § 2255 petition. In his motion, Washington (proceeding pro se) raised numerous claims, including the arguments that Judge Tevrizian adjudicated the § 2255 motion without being familiar with the record, that Washington was innocent, that Judge Tevrizian should have held an evidentiary hearing on Washington's actual innocence claim, and that Judge Tevrizian had failed to consider and rule on Washington's Confrontation Clause and innocence claims.

This new motion was assigned to Judge Dean Pregerson, who construed it as a motion under Rule 60(b)(4) of the Federal Rules of Civil Procedure seeking relief from Judge Tevrizian's February 2, 2006 order denying Washington's initial § 2255 motion.² Although Washington's motion also invoked Rule 63 of the Federal Rules of Civil Procedure,³ Judge Pregerson read the motion as claiming that Judge Tevrizian's order was void because the judge had not properly followed the...