Mekdara v. United States, C15-4056-MWB

• Decision Date: 05 November 2015
• Docket Number: No. C15-4056-MWB,No. CR11-4118-MWB,C15-4056-MWB,CR11-4118-MWB
• Court: U.S. District Court — Northern District of Iowa
• Parties: SANGVANG JUAN MEKDARA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

SANGVANG JUAN MEKDARA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C15-4056-MWB

No. CR11-4118-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

November 5, 2015

ORDER

TABLE OF CONTENTS

I. BACKGROUND ............................................................................. 2

II. LEGAL ANALYSIS ........................................................................ 3

A. Applicable Standard ................................................................ 3

B. Application Of The Standards .................................................... 6

C. Certificate Of Appealability ..................................................... 13

III. CONCLUSION ............................................................................ 14

This case, originally assigned to Judge O'Brien, is before me on a Rule 60(b) motion to reconsider.¹

I. BACKGROUND

On August 25, 2011, Mekdara was indicted on several counts related to the distribution of methamphetamine. Mekdara pleaded guilty to three counts and Judge O'Brien sentenced him to 199 months incarceration. (Crim. docket no. 73). On May 7, 2015, Judge O'Brien granted Mekdara an eleven month sentence reduction based on the "All Drugs Minus Two" sentencing guidelines change. (Crim. docket no. 94). Mekdara filed a pro se appeal to the Eighth Circuit Court of Appeals, believing he merited a greater sentence reduction. On June 1, 2015, the Eighth Circuit Court of Appeals summarily affirmed Judge O'Brien's ruling. (Crim. docket no. 101.). Mandate issued on June 24, 2015.

On June 26, 2015, Mekdara filed his 28 U.S.C. § 2255 Motion. On July 29, 2015, Judge O'Brien entered an initial review order denying Mekdara's claim. (Civ. docket no. 2). Judge O'Brien concluded that Mekdara's habeas claim was time barred. Judge O'Brien also noted that, "post-judgment relief related to changes in the sentencing guidelines—including the 'All Drugs Minus Two' change—is limited by 18 U.S.C. § 3582(c)(2) and U.S.S.G. 1B1.10. Those statutes provide the exclusive means of changing a sentence based a guidelines change. Mr. Mekdara cannot renumber his argument as a 28 U.S.C. § 2255 merely because he is dissatisfied with the Court's prior Order under 18 U.S.C. § 3582(c)(2)." (Civ. docket no. 2, p. 4).

Following Judge O'Brien's initial review order, Mekdara filed a 28 U.S.C. § 2241 petition in the U.S. District Court for Minnesota. See Mekdara v. Wilson, No. 15-CV-3632 (JNE/JJK) (D. Minn filed Sep. 10, 2015). In the § 2241 petition, Mekdara raised the same arguments he asserted in his pro se § 2255 petition. He specifically argued that Judge O'Brien's application of the "All Drugs Minus Two" sentencing reduction violated the ex post facto clause as applied to his case. Judge Ericksen, adopting a Report andRecommendation authored by U.S. Magistrate Judge Jeffrey Keyes, found that § 2241 could not provide Mekdara the relief he sought and dismissed Mekdara's claim for lack of jurisdiction. Additionally, the Minnesota Court considered the merits of Mekdara's claim and found that, "[r]egardless of whether the Sentencing Guidelines permitted the sentencing court to impose a more lenient punishment than the sentencing court believed, the sentence actually imposed on Mekdara was not illegal. After all, the sentencing court need not have modified Mekdara's sentence at all. See 18 U.S.C. § 3582(c)(2) ("the court may reduce the term of imprisonment ...." Mekdara v. Wilson, No. 15-CV-3632 (JNE/JJK), 2015 WL 6445371, at *3 (D. Minn. 2015).

On October 26, 2015, Mekdara filed the present Rule 60(b) motion to reconsider. In his motion, Mekdara argues that Judge O'Brien erred by finding Mekdara's claim was time barred. Mekdara bases his motion to reconsider on a comment from Magistrate Keyes's Report and Recommendation which suggested Mekdara would be better off challenging Judge O'Brien's statute of limitations ruling than filing a § 2241 petition.²

II. LEGAL ANALYSIS

A. Applicable Standard

Federal Rule of Procedure 60(b) states that:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial underRule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Rule 60(b) applies to 28 U.S.C. § 2255 proceedings to the extent it is not inconsistent with the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009); see also 28 U.S.C. § 2255; FED. R. CIV. P. 81(a)(4). Inconsistencies between Rule 60(b) and 28 U.S.C. § 2255 may arise because it is long established that a second successive § 2255 motion requires certification by a court of appeals before filing. See 28 U.S.C. § 2244(b)(3)(A). "[I]nmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure." United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005); see also United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per curiam) (also explaining that inmates may not bypass authorization requirement of § 2255 by purporting to invoke some other procedure); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (explaining that, if a Rule 60(b) motion is actually a successive habeas petition, the district court should deny it for failure to obtain authorization from the court of appeals, or, in its discretion, transfer the motion to the court of appeals).

Rule 60(b) creates an exception to the finality of a district court's judgment in a habeas proceeding. See Ward, 577 F.3d at 933. District courts, when presented with a purported Rule 60(b) motion following the dismissal of a petitioner's habeas claim, should conduct a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion, in fact, amount to a second or successive collateral attack under 28 U.S.C. § 2255. See Boyd, 304 F.3d at 814. A Rule 60(b) motion is a second or successivehabeas corpus application if it contains a "claim." Ward, 577 F.3d at 933. When no "claim" is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005). As the Eighth Circuit Court of Appeals has explained,

For the purpose of determining whether the [Rule 60(b)] motion is a habeas corpus application, claim is defined as an "asserted federal basis for relief from a state court's judgment of conviction" or as an attack on the "federal court's previous resolution of the claim on the merits." Gonzalez, 545 U.S. at 530, 532, 125 S.Ct. 2641. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA.

Ward, 577 F.3d at 933. On the other hand, the court has explained,

No claim is presented if the motion attacks "some defect in the integrity of the federal habeas proceedings." [Gonzalez, 545 U .S.] at 532, 125 S.Ct. 2641. Likewise, a motion does not attack a federal court's determination on the merits if it "merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id. at n. 4.... The Supreme Court has "note[d] that an attack based on the movant's own conduct, or his habeas counsel's omissions, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably." Id. at 532 n. 5, 125 S.Ct. 2641 (internal citation omitted)....

Ward, 577 F.3d at 933.

B. Application Of The Standards

The Government filed a resistance to Mekdara's Rule 60(b) motion. (docket no. 5) The Government argues that I should not consider Mekdara's motion because it is, essentially, a second successive § 2255 petition. However, it is clear that Mekdara's claim is properly brought as a Rule 60(b) motion. As the Eighth Circuit Court of Appeals stated in the above quoted opinion, a Rule 60(b) motion is proper in a § 2255 case when the motion does not raise a new claim, but rather asserts an error in the previous ruling. In this case, Mekdara argues Judge O'Brien erred by finding that his claim was time barred. Accordingly, after conducting a 'brief initial inquiry' I find that I may consider the merits of the alleged error.

Mekdara's claim is that Judge O'Brien improperly concluded that the § 2255 habeas petition was time barred. Mekdara's support for this claim is the comment made by Magistrate Keyes in Minnesota, discussed above. Mekdara argues that Judge O'Brien's conclusion was incorrect, because Mekdara's claim is based on newly discovered facts, specifically, Judge O'Brien's "All Drugs Minus Two" order in Mekdara's criminal case.

Judge O'Brien's timeliness analysis was straightforward. As he set out in the order dismissing Mekdara's case:

According to 28 U.S.C. § 2255(f), a 1-year period of limitation shall apply to a motion filed under 28 U.S.C. § 2255. The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation

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