Rosas v. United States
| Decision Date | 09 September 2011 |
| Docket Number | No. C 07-4097-MWB,C 07-4097-MWB |
| Parties | MARIO ROSAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
MEMORADUM OPINION AND ORDER REGARDING
PETITIONER'S RULE 60(B) MOTION
TABLE OF CONTENTS
I. INTRODUCTION .................................................... 2
II. SUCCESSIVE § 2255 PETITIONS .................................................... 2
III. LEGAL ANALYSIS .................................................... 5
IV. CONCLUSION .................................................... 14
I. INTRODUCTION
This case is before me on petitioner Mario Rosas's Pro Se Motion For Relief From Judgment On The Basis Of Procedural Defect In This Court's September 22, 2009, Decision On Petitioner's Section 2255 Motion (docket no. 32) (Motion), filed on July 1, 2011. In his Motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, Rosas claims that my previous ruling denying his Motion Under 28 U.S.C. § 2255 was procedurally defective because I failed to hold an evidentiary hearing, failed to consider all the issues raised in his § 2255 motion, and failed to liberally construe his § 2255 motion. See Motion at 1-2. The respondent claims, first, that Rosas's Motion is untimely and, second, that even if considered timely, it is without merit and should be denied. Response at 1-4.
II. SUCCESSIVE § 2255 PETITIONS
Rule 60(b) applies to habeas 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). A successive § 2255 motion requires certification by a court of appeals before filing. See 28 U.S.C. §§ 2244(b)(3)(A). "It is well-established that inmates 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) (); Boyd v. United States, 304 F.3d 813, 814(8th Cir. 2002) (per curiam) ().
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 habeas petitioner, 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 seeking relief from the denial of a § 2255 motion and raising claims of a postconviction relief nature should be construed as a successive 2255 motion. See Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir. 1993); see also Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir. 1992). A Rule 60(b) motion is a second or successive habeas 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). For the purpose of determining whether the motion is a habeas corpus application, "claim" is defined, as applicable to the facts of this case, as an attack on the "federal court's previous resolution of the claim on the merits." See Ward, 577 F.3d at 933. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief ...." Id. When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA. Id.
No claim is presented if the motion attacks "some defect in the integrity of the federal habeas proceedings." See Gonzalez, 545 U.S. at 532. "Likewise, a motion does not attack a federal court's determination on the merits if it 'merely asserts that a previousruling 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.'" Ward, 577 F.3d at 933 (quoting Gonzalez, 545 U.S. at 530). "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. (quoting Gonzalez, 545 U.S. at 532 n.5). Although an assertion of ineffective assistance of habeas counsel may be characterized as a defect in the integrity of the habeas proceeding, it ultimately seeks to assert or reassert substantive claims with the assistance of new counsel. Id. at 932. Moreover, the AEDPA specifically prohibits such grounds for relief. Id.
Rosas's Rule 60(b) Motion attacks my previous Memorandum Opinion and Order, and Judgment (docket nos. 19 & 20), of September 22, 2009, denying his request for relief pursuant to 28 U.S.C. § 2255, on three grounds. Motion 1-2. Rosas challenges the procedural integrity of my Order on the basis that I failed to hold an evidentiary hearing. Motion at 1. Rosas also argues that my Order lacked procedural integrity because I failed to consider all the claims that he raised in his § 2255 Motion. Motion at 2. Rosas further claims that I failed to liberally construe his § 2255 Motion. Motion at 2. I construe these claims as claims that my Order was procedurally defective and, therefore, void, pursuant to Rule 60(b)(4). While Rosas appears to cast a number of these challenges as attacks on procedural integrity, Rosas points to the ineffective assistance of his habeas counsel as being responsible for the alleged procedural defects of the court, and to the extent that these claims assert ineffective assistance of counsel, they are denied because they ultimately seek to assert or reassert substantive claims with the assistance of new counsel, which makes them successive § 2255 motions. See Ward, 577 F.3d at 932.
III. LEGAL ANALYSIS
Respondent asserts that Rosas's Motion is not timely because it was not filed within one year of the judgment entered on April 13, 2010. Response at 1. n1 Respondent argues that Rosas's claims are subject to the one-year period because they appear to assert mistake, inadvertence, surprise, or excusable neglect pursuant to Federal Rule of Civil Procedure 60(b)(1). Response at 1.
Federal Rule of Civil Procedure 60(b) provides that:
Further, with regard to the timing of such a motion, Rule 60(c)(1) of the Federal Rules of Civil Procedure provides that "A motion under Rule 60(b) must be made within a reasonable time -- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." See Fed.R.Civ.P. 60(c)(1). It is well established that the pendency of an appeal does not toll the one-year maximum period for filing motions under Rule 60(b)(1)-(3). Federal Land Bank of St. Louis v. Cupples Bros., 889 F.2d 764, 766 (8th Cir. 1989). The reason behind this principle is that such motions "can be made even though an appeal has been taken and is pending. Id. A district court may consider a Rule 60(b) motion on the merits and deny it even if an appeal is already pending, and a separate appeal may thereafter be taken to challenge the denial. Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
Rosas's challenge is to my Order and Judgment (docket nos. 19 & 20), of September 22, 2009, denying his request for relief pursuant to 28 U.S.C. § 2255. Motion at 1-2. On December 3, 2009, Rosas, through counsel, filed a Notice of Appeal (docket no. 23), to the United States Court of Appeals for the Eighth Circuit, requesting a certificate of appealability from my denial of his § 2255 Motion. On April 12, 2010, the Eighth Circuit Court of Appeals entered a Judgment (docket no.29) denying Rosas's application for a certificate of appeal and dismissing his appeal in its entirety. Thereafter, on July 22, 2010, the Eighth Circuit Court of Appeals entered an Order (docket no. 30) denying Rosas's petition for rehearing en banc and his petition for rehearing by the panel. On July 30, 2010, the Eighth Circuit Court of Appeals entered a Mandate (docket no.31) in accordance with its judgment of April 12, 2010.
Respondent mistakenly asserts that Rosas is seeking relief from a judgment entered on April 13, 2010, when he is seeking relief from my Order and Judgment of September 22, 2009. Response at 1. However, responde...
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