United States District Court, E.D. Washington
ORDER TRANSFERRING DEFENDANT’S MOTION UNDER
FED. R. CIV. P. 60(B)
O. RICE CHIEF UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant’s Motion to Set Aside a Previous
§ 2255 Judgment Pursuant to Fed.R.Civ.P. 60(b)(4) &
(6). ECF No. 279.
Court has reviewed the present motion, the record, and files
herein, and is fully informed. For the reasons discussed
below Defendant’s Motion to Set Aside a Previous §
2255 Judgment Pursuant to Fed.R.Civ.P. 60(b)(4) & (6)
(ECF No. 279) will be transferred to the Ninth Circuit Court
previously filed a Motion for Habeas Corpus Pursuant to 28
U.S.C. § 2255 on December 21, 2017. ECF No. 262. On May
3, 2018, this Court denied Petitioner’s Motion. ECF No.
270. On August 6, 2018, the Ninth Circuit denied a
Certificate of Appealability. ECF No. 275. On September 25,
2018, the Ninth Circuit denied reconsideration and
reconsideration en banc. ECF No. 276. On April 1,
2019, the Supreme Court of the United States denied the
petition for writ of certiorari. ECF No. 278.
district court lacks authority to review successive habeas
motions filed without authorization from the court of
appeals. 28 U.S.C. § 2255(h); 28 U.S.C. §
2244(b)(4)(A); see also United States v. Allen, 157
F.3d 661, 664 (9th Cir. 1998). The Antiterrorism and
Effective Death Penalty Act of 1996 [AEDPA] amended the
federal habeas statutes and added the requirement that any
prisoner seeking to file a successive habeas application must
first file, in the appropriate court of appeals, a motion for
an order authorizing the district court to consider the
successive application. 28 U.S.C. § 2244(b)(3)(A); Ninth
Circuit Rule 22-3(a). Once the applicant files such a motion,
the court of appeals then reviews the successive application
to determine whether it contains (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 Supreme Court, that was previously unavailable. 28
U.S.C. § 2255(h).
60(b)(4) and (6) provide that a district court may relieve a
party from a final judgment, order, or proceeding where the
movant has shown . . . (4) the judgment is void; . . . or (6)
any other reason justifying relief. A party seeking Rule
60(b)(6) relief must show “‘extraordinary
circumstances’ justifying the reopening of a final
judgment.” Gonzalez v. Crosby, 545 U.S. 524,
535 (2005) (quoting Ackermann v. United States, 340
U.S. 193, 199 (1950)).
60(b) motion, however, cannot be used to undermine the
limitations on the collateral attack of a federal conviction.
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). United States v. Washington,
653 F.3d 1057, 1059 (9th Cir. 2011). “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 pleading as being a motion
under Rule 60(b) of the Federal Rules of Civil
Procedure.” Id. at 1059.
Rule 60(b) motion 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.
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.” Washington, 653 F.3d at
1059–60 (quoting Gonzalez, 545 U.S. 532, 534).
However, the Supreme Court has instructed that a motion
raising an entirely “new claim, ” or attacking
“the federal court’s resolution of a claim on the
merits, ” is a disguised second or successive motion.
Gonzalez, 545 U.S. at 531–32.
Mr. Alarcon-Fuentes contends he “is not trying to
present a new reason why he should be relieved of either his
conviction or his sentence, as provided in 28 U.S.C. §
2255.” ECF No. 279 at 3. He explains that he “is
instead trying to reopen his existing Section 2255 proceeding
and overcome a procedural barrier to its adjudication since
he cannot be convicted on the basis of an uncorroborated
admission.” Id. Mr. Alarcon-Fuentes, for the
first time, contends that his “admission is
inadequately corroborated.” Id. at 4. That is
precisely a new claim that was not presented in his first
§ 2255 motion, consequently, he is not attacking some
defect in the integrity of the first federal habeas
proceeding. Accordingly, the Court construes Mr.
Alarcon-Fuentes’ Motion to Set Aside a Previous §
2255 Judgment Pursuant to Fed.R.Civ.P. 60(b)(4) & (6) as
a Successive Motion to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C.§ 2255.
previously noted, the Court has already denied Mr.
Alarcon-Fuentes’ first motion under 28 U.S.C. §
2255. ECF No. 270. Neither the record nor any evidence
submitted by Mr. Alarcon-Fuentes shows that he obtained the
required authorization from the Ninth Circuit. Therefore,
this Court does not have jurisdiction to consider his
application for relief. Ninth Circuit Rule 22-3(a) provides
If an unauthorized second or successive . . . section 2255
motion is submitted to the district court, the district court
may, in the interests of justice, refer it to the Court of
Court believes it is in the interest of justice to transfer
this case to the Ninth Circuit. See also 28 U.S.C.
§ 1631. In general, the Ninth Circuit has taken a broad
view of when transfer is appropriate, recognizing that
“[n]ormally transfer will be in the interest of justice
because normally dismissal of an action that could be brought
elsewhere is ‘time-consuming and
justice-defeating.’” Amity Rubberized Pen Co.
v. Mkt. Quest Grp. Inc., 793 F.3d 991, 996 (9th Cir.
2015) (citation omitted). Transferring Mr.
Alarcon-Fuentes’ Motion would expedite a just result in