United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR RELIEF PURSUANT TO
HONORABLE RONALD B. LEIGHTON, JUDGE
MATTER is before the Court on Petitioner's Motion for
Relief Pursuant to Fed.R.Civ.P. Rule 60(b) [Dkt. #78]. The
Court has reviewed the materials for and against said motion
and for the following reasons the Court
DENIES said motion.
April 18, 2014, Emiel Kandi pleaded guilty to two counts of a
seven-count Indictment related to a mortgage fraud scheme. CR
36, 37. Kandi pleaded guilty to Count 1, which charged
Conspiracy to Make False Statements to HUD, and Count 2,
which charged Making False Statements in a Loan Application.
On October 22, 2014, the Court sentenced Emiel Kandi to 60
months' imprisonment on Count 1, and 60 months'
imprisonment on Count 2, with the sentences to be served
concurrently. CR 51. Per his Plea Agreement, Kandi waived his
right to challenge the sentence on appeal, and he did not
file a notice of appeal.
23, 2016, the Court received and filed Kandi's Motion to
Correct Sentence under 28 U.S.C. § 2255 (“the 2255
Motion”). See Kandi v. United States, No. CV
16-5389RBL (“CV”). In the 2255 Motion, Kandi
claimed that his plea was not voluntary and second, he claims
that he received ineffective assistance of counsel. Kandi
filed motions for writs of audita querela and
quo warranto. He also filed a motion for sentencing
reduction under 18 U.S.C. § 3582(c)(2) based on an
amendment to the “sophisticated means”
October 27, 2016, the Court denied his petition on all
grounds, finding that it was both untimely and meritless.
See CV 18 (2255 Order).
October 13, 2017, Kandi prepared a motion for relief pursuant
to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)
Motion”). CR 78 (Motion); CR 79 (Memorandum in
Support); CR 80 (Affidavit). Fed.R.Civ.P. 60(b) allows a
court to relieve a party from a civil judgment, for certain
enumerated reasons, upon a motion filed within one year.
See Fed. R. Civ. P. 60(b)(1)-(6); 60(c)(1). As to
reasons, Kandi apparently brings the Rule 60(b) Motion
pursuant to Section (b)(6), which permits a court to grant
relief for “any other reasons that justifies
relief.” CR 79 at 6. As to timing, the Rule 60(b)
Motion apparently seeks relief from the 2255 Order entered in
seeks relief from the 2255 Order on three grounds: 1) the
Court improperly applied a leadership sentencing guidelines
enhancement (CR 79 at 1-3); 2) the Court improperly applied
an abuse of trust guidelines enhancement (CR 79 at 3-4); and
was improperly convicted of conspiracy without any named
co-conspirators or related cases (CR 79 at 4-6).
initial matter, it is clear that the Rule 60(b) Motion can
only be directed to the civil judgment, not the criminal
judgment. The motion is brought pursuant to the rules of
civil procedure. Cf. United States v. McAllister,
601 F.3d 1086, 1087 (10th Cir. 2010) (finding that Rule 60(b)
motion not available to challenge denial of motion for
reduction of sentence). Also, it is not timely under the
rules of criminal procedure.
as a challenge to the 2255 Order, the Rule 60(b) Motion still
must fail, because it is actually a second successive 2255
petition. A second 2255 petition must be authorized by an
appropriate court. See 28 U.S.C. § 2255(h).
distinguish between a second successive 2255 petition and a
legitimate Rule 60(b) motion, courts examine whether the
motion raises a “new claim” or merely
“attacks the federal court's resolution of a claim
on the merits.” Gonzalez v. Crosby, 545 U.S.
524, 531-32 (2005). On the other hand, if the motion asserts
some defect in the integrity of the federal habeas
proceedings, it is a legitimate Rule 60(b) motion. United
States v. Washington, 653 F.3d 1057, 1063 (9th Cir.
2011). An example of a defect in the integrity of the habeas
proceedings is a fraud on the federal habeas court. See
id.; see also Todd v. United States, No.
C11-470JLR, 2012 WL 5351845, *2 (W.D. Wash. Oct. 29, 2012).
Rule 60(b) Motion, which attacks the guidelines and his
conspiracy conviction, raises new claims and is a prohibited
second 2255. Kandi also attacks the merits of the Court's
ruling on the 2255 by challenging the Court's declination
to hold an evidentiary hearing. CR 79 at 7-8. An allegation
that a district court judge declined to conduct an
evidentiary hearing “does not constitute an allegation
of a defect in the integrity of the proceedings; rather, such
arguments are merely asking ‘for a chance to have the
merits determined favorably.'” Washington,
653 F.3d at 1064, quoting Gonzalez, 545 U.S. at 532
n.5. It is clear that the Rule 60(b) Motion is merely a
second successive 2255 motion.
foregoing reasons, the Rule 60(b) motion [Dkt. #78] is
DENIED and the Court DENIES