United States v. Soto-Valdez
| Decision Date | 18 September 2013 |
| Docket Number | No. CV-99-1591-PHX-RCB(LOA),CV-99-1591-PHX-RCB(LOA) |
| Parties | United States of America, Plaintiff/Respondent, v. Castulo Soto-Valdez, Defendant/Movant. |
| Court | U.S. District Court — District of Arizona |
Currently pending before the court is the Report and Recommendation ("R & R") of the Honorable United States Magistrate Judge Lawrence O. Anderson ("the Magistrate Judge"), wherein he recommends: (1) denying movant's Motion for Relief from Judgment under Rule 60(b)(6) (Doc. 1); granting movant's Motion to Supplement his Rule 60(b)(6) (Doc. 11); and denying a Certification of Appealability ("COA") and leave to proceed in forma pauperis on appeal. R & R (Doc. 12) at 7:16-24. Movant pro se, Castulo Soto-Valdez ("Valdez"1), timely objected to the R & R. Also pending before the court is the movant's second motion to supplement (Doc. 14), based upon, inter alia, two cases decided after the issuance of the R & R. The final pending matter is the movant's "Motion for Disposition" (Doc. 18).
There being no objections to the R & R's factual recitation, the court adopts that background as if fully set forth herein. See R & R (Doc. 12) at 1:18-3:22. For convenience though, the court reiterates those facts bearing most heavily on the pending R & R. The facts relevant to plaintiff's motion to supplement, filed after the issuance of the R & R, also are set forth below.
Movant Valdez is serving a 360 month sentence for a conviction for conspiring to distribute and possess with intent to distribute methamphetamine. The movant, through his then attorney, Colin Jon Kooyumjian, appealed that conviction. Although it affirmed the movant's conviction, the Ninth Circuit specifically, "decline[d] to consider [Valdez's] ineffective assistance of counsel [("IAC")] claim," on the basis that it "should be resolved in a separate habeas corpus proceeding." United States v. Soto-Valdez, 191 F.3d 462, 1999 WL 701896, at *1 (9th Cir. 1999) (unpublished).
Presciently, just a few days prior to the issuance ofthat decision, on September 3, 1999, attorney Kooyumjian, filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct sentence, asserting an IAC claim and prosecutorial misconduct. R & R (Doc. 12) at 3:3-9 (citation omitted). The IAC claim was predicated upon trial counsel's alleged failure to listen to and obtain a voice analysis of wiretaps purporting to be conversations between him and other conspirators. See CR2 Doc. 1210 at 1:26-2:1.
After additional briefing and an evidentiary hearing on the IAC claim, the Magistrate Judge recommended denying the section 2255 petition in its entirety. CR Doc. 1206. Accepting the R & R, on January 8, 2001, this court denied that petition; dismissed the case and entered judgment accordingly. See CR Docs. 1210 and 1211; and Mot. (Doc. 1), exh. A thereto at 9. Attorney Kooyumjian timely appealed. R & R (Doc. 12) at 3:15-16 (citation omitted); see also id., exh. D thereto at 13. Shortly thereafter, on February 28, 2001, this court filed a COA and an order to proceed in forma pauperis on appeal, finding that the movant "ha[d] made a substantial showing of the denial of a constitutional right with respect to the . . . [IAC] issue[] . . . , and no other issue." Mot. (Doc. 1), exh. C thereto at 12. Ultimately, because the movant did not file an opening brief, the Ninth Circuit dismissed his appeal on March 6, 2002. Mot. (Doc. 1), exh. F thereto at 17.
Slightly more than nine years later, on February 7, 2011, the movant filed his self-styled "Motion for Relief from Judgment under Rule 60(b)(6)[.]" Mot. (Doc. 1) at 1 (emphasis omitted). The movant advances two reasons purportedly establishing "extraordinary circumstances" warranting relief under that Rule. Only one is relevant at this juncture.3 In particular, the movant argues that attorney Kooyumjian "'abandoned'" him by not timely filing an opening brief in the Ninth Circuit, resulting in the dismissal of his appeal, despite the issuance of a COA by this court as to movant's ICA claim. Id. at 3. In his Rule 60(b)(6) motion, the movant is seeking to have the court vacate the judgment and order denying his section 2255 motion; "reopen the § 2255 proceedings and reschedule a renewed evidentiary hearing[;]" and appoint counsel to represent him at that hearing. Id. at 6. Alternatively, the movant requests that the court vacate that judgment and "reenter [it] providing [him] with a renewed direct appeal from the denial of his § 2255 motion." Id.
The United States counters that the court should deny the pending motion because the Ninth Circuit appeal divested this court of jurisdiction. Further, the United States arguesthat this motion is untimely because it was not brought within a "reasonable time" as Rule 60(c)(1) requires.
The movant retorts that this court "retains jurisdiction over the § 2255 proceedings" because "the integrity of the habeas proceedings" was "undermined[.]" Reply (Doc. 10) at 3 and 5. According to the movant, that occurred when, although this court had issued a COA as to the ICA claim, the Ninth Circuit dismissed the appeal because his lawyer did not file an opening brief. As a result, the movant maintains that he was deprived of the opportunity to pursue his IAC claim on appeal.
Rule 60(b) may not be used as a vehicle for circumventing "the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar." Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (citing § 2244(b)(3)).4 Accordingly, the threshold issue is whether, under Gonzalez, the movant's Rule 60(b)(6) motion is in fact a disguised § 2255 motion. See Washington, 653 F.3d at 1062; United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir . 2011). Reasoning that "[u]nder Gonzalez, Movant's 'assertion that his post-conviction counsel gave him ineffective assistance in connection with his § 2255 motiondoes not go to the integrity of the habeas proceedings but, in effect, asks for a second chance to have the merits determined favorably[,]'" the Magistrate Judge found the movant's Rule 60(b)(6) motion to be "a disguised § 2255 motion[.]" R & R (Doc. 12) at 6:10-15 (quoting U.S. v. Bahna, 2010 WL 491658, * 3 (C.D.Cal, Nov. 24, 2010)). On that basis, the Magistrate Judge recommended dismissal of the Rule 60(b)(6) motion for lack of jurisdiction "to consider the merits . . . absent authorization from the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 2255(h)." Id. at 7:2-4 (citations omitted).
During the pendency of the movant's 60(b)(6) motion before the Magistrate Judge, the Supreme Court decided Maples v. Thomas, --- U.S. ---, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), holding "that abandonment by post-conviction counsel could provide cause to excuse procedural default of a habeas claim." Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012) (citation omitted). Shortly after the issuance of Maples, the movant filed a motion "urg[ing] the [Magistrate Judge] to consider" Maples as an "intervening . . . decision . . . right on point with" his case. Mot. (Doc. 11) at 2. The Magistrate Judge found that "Maples does not change the fact that the Movant's claim of ineffective assistance of § 2255 counsel is not cognizable in a Rule 60(b)(6) motion." R & R (Doc. 12) at 7:11-12. Nonetheless, the Magistrate Judge recommended granting the motion to supplement "to the extent that the Court considered whether Maples impacts the Rule 60(b)(6) motion." Id. at 7:13-14.
Objecting to the R & R, movant Valdez directly challenges "the Magistrate's finding that [the movant's] Rule 60(b)(6) motion is 'a disguised § 2255 motion[.]'" Obj. (Doc. 13) at 2. Arguing that under Gonzalez, his Rule 60(b)(6) motion "does not challenge the merits of the judgment denying habeas relief[,] nor does it raise a new claim[,]" the movant maintains that this court "has jurisdiction to grant the requested relief." Id. at 5. In his objections, the movant narrows the scope of relief which he is seeking. Now, he is seeking only what he originally termed his alternative form of relief, i.e. vacatur of the judgment denying his section 2255 motion; "reent[ry]" of that judgment, which the movant believes would "allow [him] to file a timely Notice of Appeal and take a new appeal to which he is entitled." Id. at 6.
Additionally, the movant broadly contends that this court has the authority under the All Writs Act, 28 U.S.C. § 1651, to provide the requested relief, but he does not elaborate. Id. at 6, footnote. Samson v. NAMA Holdings, LLC, 637 F.3d 915, 936 n. 93 (9th Cir. 2011) (internal quotation marks and citation omitted).
Insofar as his motion to supplement is concerned, the movant's objections include a selective quote from Maples, but nothing more.
The movant's specific objection to the finding that his Rule 60(b)(6) motion is a disguised section 2255 motion requires de novo review. See 28 U.S.C. § 636(b)(1) (); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (citation omitted) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R[.]"); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) emphasis in original) (Section 636(b)(1) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not...
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