United States v. Washington

653 F.3d 1057, 2011 U.S. App. LEXIS 16337
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 8, 2011
DocketNo. 09-56569
StatusPublished
Cited by1 cases

This text of 653 F.3d 1057 (United States v. Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Washington, 653 F.3d 1057, 2011 U.S. App. LEXIS 16337 (9th Cir. 2011).

Opinion

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 We affirmed his conviction in [1059]*1059an unpublished disposition. See United States v. O’Neal, 213 F.3d 644 (9th Cir.2000) (unpublished).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 certifícate, 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) [1060]*1060motion 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

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Related

United States v. Washington
653 F.3d 1057 (Ninth Circuit, 2011)

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Bluebook (online)
653 F.3d 1057, 2011 U.S. App. LEXIS 16337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-washington-ca9-2011.