United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO DISMISS CONVICTION AND MOTION TO
B. Leighton United States District Judge
MATTER is before the Court on pro se Petitioner
Patrick McAllister's Motion to Dismiss Conviction
Pursuant to Rule 60(b) [Dkt. 39] and his Motion to Stay
Probation [Dkt. 46]. In 2012, McAllister was convicted by a
jury in Jefferson County Superior Court of 31 counts of rape
and assault against his non-citizen fiancée and
sentenced to 250 months imprisonment. In 2013, McAllister
pled guilty to a single count of immigration fraud (18 U.S.C.
§ 1546(a)) for making a false declaration on a Petition
for Alien Fiancé(e) (I-129F) form that he submitted to
federal immigration authorities. This Court sentenced
McAllister to time served and one year of supervised release
to commence after the completion of his state sentence. The
Court also ordered several special conditions of supervision,
including the requirement that McAllister undergo a sexual
deviancy evaluation and participate in a certified sexual
deviancy treatment program designated by the U.S. Probation
and Pretrial Services Office. See United States v.
McAllister, 3:13-cr-5464-RBL, Dkt. 62 at 4. McAllister
appealed but the Ninth Circuit affirmed his conviction.
McAllister's subsequent petition to vacate his conviction
pursuant to 28 U.S.C. § 2255 was also denied.
See Dkt. 1; Dkt. 29.
2017, the Washington Court of Appeals (Division II) reversed
McAllister's rape and assault convictions on ineffective
assistance of counsel grounds. In re McAllister, 199
Wash.App. 1068 (Wash.Ct.App. 2017). McAllister now asserts
that the reversal of his state convictions for rape and
assault justify vacating his federal immigration fraud
conviction. McAllister also seeks to delay the imposition of
his supervised release pending the Court's ruling on his
Rule 60 motion. The Government opposes McAllister's
motions, arguing that the vacated state convictions are
immaterial to McAllister's federal conviction, and that
there is no grounds to delay the imposition of supervised
have an obligation to construe a pro se
petitioner's pleadings liberally. See Balistreri v.
Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990);
Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985). Fed.R.Civ.P. 60(b) “allows a party to seek
relief from a final judgment, and request reopening of his
case, under a limited set of circumstances including fraud,
mistake, and newly discovered evidence.” Gonzalez
v. Crosby, 545 U.S. 524, 528 (2005). This rule, however,
is not intended to provide relief from a criminal judgment.
See United States v. Andrade-Larrios, 39 F.3d 986,
988 (9th Cir. 1994). A § 2255 petition for habeas relief
is the proper avenue for a prisoner in federal custody to
petition the court that sentenced him to vacate, set aside,
or correct his sentence if it imposed his sentence “in
violation of the Constitution or laws of the United
States” or lacked “jurisdiction to impose such
sentence, ” or if his sentence exceeded “the
maximum authorized by law” or “is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a). The obtain relief, the movant must prove, by a
preponderance of the evidence, the existence of an error
rendering his conviction unlawful. See Simmons v.
Blodgett, 110 F.3d 39, 42 (9th Cir. 1997). The
petitioner bears the burden of establishing any factual
predicates necessary to establish his claims. See Grady
v. United States, 929 F.2d 468, 471 (9th Cir. 1991). A
second or successive habeas petition must be preauthorized by
the Court of Appeals before it can be considered by the
district court. See 28 U.S.C. § 2255(h)(1); 28
U.S.C. § 2244(b); Crosby, 545 U.S. at 531-32.
Rule 60(b) Motion to Vacate Criminal Conviction
already filed a § 2255 petition challenging his
immigration fraud conviction, arguing that his plea was
involuntary, that the Government withheld exculpatory
evidence, and that his lawyer failed to competently represent
him. Dkt. 1. The Court denied the petition, determining
McAllister's knowing and voluntary waiver of his
appellate rights procedurally barred his collateral attack on
his conviction. Dkt. 29. The Court also rejected
McAllister's ineffective assistance of counsel claim as
meritless. Id. Both this Court and the Ninth Circuit
declined to issue a certificate of appealability.
Id. at 5; Dkt. 38.
now purports to challenge his immigration fraud conviction
under Fed.R.Civ.P. 60(b). Dkt. 39; Dkt. 48 at 2. But, as the
U.S. Supreme Court observed, “[v]irtually every Court
of Appeals to consider the question has held that such a
pleading, although labeled a Rule 60(b) motion, is in
substance a successive habeas petition and should be treated
accordingly.” Crosby, 545 U.S. at 531. The
Court must treat McAllister's Rule 60(b) motion to vacate
his immigration fraud conviction as a successive § 2255
petition. The Court may not adjudicate McAllister's
second § 2255 petition absent prior authorization from
the Ninth Circuit Court of Appeals. 28 U.S.C. §
2255(h)(1); 28 U.S.C. § 2244(b). Because McAllister has
not received authorization to file a subsequent § 2255
petition, his motion [Dkt. 39] is DENIED.
McAllister's second § 2255 petition were properly
before the Court, the reversal of his state convictions has
no bearing on his federal conviction for immigration fraud.
McAllister repeatedly conflates his state rape and assault
convictions, which were reversed by the Washington Court of
Appeals, with his federal conviction for making a false
declaration on the I-129F form, which has been affirmed by
the Ninth Circuit. See United States v. McAllister,
634 Fed.Appx. 202 (9th Cir. 2015) (holding McAllister's
waiver of his appellate rights in his plea agreement was
knowing and voluntary, and that the government did not breach
the plea agreement by recommending special conditions of
supervised release). McAllister's assertion that the
state case and the federal case “were 100% integrated,
where the Federal case is predicated on the state
conviction” is simply incorrect. Dkt. 39 at 1.
McAllister was charged with different crimes, by different
sovereigns, adjudicated in separate proceedings before
different courts. Although the state charges against
McAllister may have ultimately brought the attention of
federal immigration authorities to McAllister's
immigration fraud, the state rape and assault charges are
otherwise unrelated to the federal immigration fraud
Motion to Stay Probation
“moves this Court for a stay of his probation until
petitioner's motion to dismiss and or the Supreme Court
decides to issue a (COA) or not.” Dkt. 46 at 1. The
Court has denied McAllister's Rule 60(b) motion above,
and there is no indication from the docket that McAllister
has filed a petition for certiorari with the U.S. Supreme
Court. The Court determines that there are no grounds which
justify staying McAllister's term of supervised release,
which began when McAllister was released from state custody
on October 20, 2017. Accordingly, McAllister's motion to
stay supervised release is DENIED.
McAllister's motion liberally, the Court also interprets
it as a request to modify the special conditions of
supervision requiring McAllister to undergo sexual-deviancy
evaluation and treatment. The Government requests the
opportunity to confer with the Probation Office and respond
separately regarding modifications to McAllister's
supervised release. Accordingly, the Court
STAYS Special Conditions of Supervision Nos.
3 and 4. The Government shall file a response stating its
position as to whether a modification removing these special
conditions of supervision is appropriate in light of the
reversal of McAllister's state rape convictions by
December 13, 2017.