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United States v. Gasca

November 24, 2008

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT
v.
CARLOS GASCA, DEFENDANT/PETITIONER.



The opinion of the court was delivered by: Judge John W. Lungstrum United States District Judge

MEMORANDUM AND ORDER

This matter comes before the court on defendant's pro se motion for relief pursuant to Federal Rule of Civil Procedure 60(b)(6), filed August 29, 2008 (Doc. 278). Defendant asks the court to reopen his previously unsuccessful habeas corpus action, based on the provision in Rule 60(b)(6) that a party may be relieved of a final judgment in a civil action for any reason "that justifies relief." For several reasons that will be discussed below, defendant's motion is denied.

Background

Defendant pleaded guilty Aug. 12, 2004 to one count of conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. §846 and later was sentenced to 360 months in prison based on sentencing guidelines and a statutory mandatory minimum. Defendant appealed his conviction and sentence to the United States Court of Appeals for the 10th Circuit. On Dec. 27, 2005, the appellate court dismissed defendant's appeal and granted the government's motion to enforce its plea agreement with defendant, which included a waiver of rights to appeal and collaterally attack his sentence (See Doc. 230).

On May 2, 2006, defendant filed a petition with this court for habeas corpus relief under 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel that caused him to enter a guilty plea he did not understand (Doc. 240). In response, the government filed a motion to enforce the plea agreement (Doc. 242). While those motions were pending, the attorney whom defendant had newly retained to handle his § 2255 motion received a disciplinary sanction of one years' suspension from the practice of law in Kansas based on matters not involving defendant. This court notified defendant of this turn of events in a June 27, 2006 order and informed defendant that he had until July 28, 2006 to either retain new counsel or file a pro se response to the government's motion to enforce the plea agreement (Doc. 248). The deadline came and went with no response from defendant, and on August 4, 2006, the court summarily granted the government's motion to enforce the plea agreement and denied defendant's § 2255 motion (Doc. 250).

On October 10, 2006, defendant filed a motion with this court seeking a Certificate of Appealability (COA) of the court's summary denial of the § 2255 motion (Doc. 256). In a memorandum and order dated October 27, 2006, this court denied defendant's request for a COA and noted in detail the colloquy between the trial court and the defendant through an interpreter at the time he entered his plea, which conflicted with defendant's assertions that he did not understand his plea agreement (See Doc. 257).

In denying the petition for COA, this court held that defendant had failed to show that reasonable jurists would find it debatable whether (a) the court erred in its procedural ruling or (b) the defendant's petition for a COA had stated a valid claim of the denial of a constitutional right (Doc. 257). On June 11, 2007, the United States Court of Appeals for the 10th Circuit also denied defendant's request for a COA "[f]or substantially the same reasons set forth by the district court" (Doc. 267).

On Aug. 29, 2008, defendant filed a motion under Federal Rule of Civil Procedure 60(b)(6) asking this court to relieve him of the final judgment in the disposition of his § 2255 motion or, at a minimum, to grant an evidentiary hearing to determine whether his plea was made voluntarily (Doc. 279).

Discussion

A. Classifying Defendant's Motion

When faced with a Rule 60(b) motion in the context of habeas corpus proceedings, the court's first task is to determine whether the motion is a "true" Rule 60(b) motion, a second or subsequent motion for relief under 28 U.S.C. § 2255, or a hybrid of the two. See Spitznas v. Boone, 464 F.3d 1213, 1216-17 (10th Cir. 2006). A motion is a "true" Rule 60 motion if it challenges only (a) a procedural ruling that precluded a determination of a habeas petition on the merits, or (b) the integrity of the proceedings used to adjudicate the petition. Id. at 1215-16. By contrast, a motion labeled a 60(b) motion is actually a second or subsequent § 2255 petition if it reasserts a substantive basis for relief from the underlying sentencing and/or conviction. See id. at 1215.

The court should interpret pro se pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Applying this standard, some elements of defendant's Rule 60(b) motion could be construed as challenging the procedures used to adjudicate his § 2255 petition, namely (a) that he suffered prejudice by virtue of his retained attorney's suspension from the practice of law, and (b) that he was entitled to an evidentiary hearing.

The bulk of the claims made by defendant, however, relate not to the § 2255 procedures but to the underlying issues raised during his first § 2255 proceeding, namely that defendant received ineffective assistance of counsel and therefore did not understand his potential sentence or his waiver of appeal. The court lacks jurisdiction to consider these matters to the extent that they constitute a second or successive § 2255 petition that has not been authorized by the circuit court of appeals. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). The district court may transfer such claims to the circuit court under 28 U.S.C. § 1631 if it concludes that it is in the interest of justice to do so. Id. at 1252. Because defendant's petition does not raise any new factual issues or new rules of constitutional law regarding his underlying plea agreement and conviction, this court concludes that the § 2255 claims within ...


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