Alvarez-Chavez v. USA

Filing 4

ORDER denying Plaintiff's 2 Motion to Vacate the Judgment and denying Plaintiff's 3 Motion on grounds of mootness. Plaintiff is urged to speak with a lawyer before submitting any future filings in this closed case. Signed by Judge Frederick J Martone on 9/13/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Martel Alvarez-Chavez,

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Plaintiff,
vs.

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United States of America,
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Defendant.
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CV 96-02841-PHX-FJM
CR 92-00113-PHX-FJM
ORDER

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We have before us plaintiff's motion "to vacate the February 1, 2001 judgment,

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denying habeas relief, based on fraud upon the habeas court" (doc. 2).1 We also have before

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us plaintiff's motion "for an order holding that the procedural aspects of 'gate-keeping'

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provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 do not apply to

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prevent appellants [sic] independant [sic] action under Hazel-Atlas, to vacate the February

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1, 2001 judgment denying 28 U.S.C. 2255 [sic] relief based upon fraud upon the habeas

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court" (doc. 3).

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These motions are plaintiff's latest attempt to overturn his conviction for conspiracy

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to possess with intent to distribute cocaine. At plaintiff's trial, the government presented the

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Plaintiff's § 2255 motion was denied on February 1, 2000 (CR 92-00113-PHX-FJM,
doc. 249). There is no docket entry for February 1, 2001.

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testimony of Maria Del Carmen Gonzalez.2 According to plaintiff, she testified that she

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traveled to California on six occasions, picking up two kilograms of cocaine each time, on

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plaintiff's behalf. Plaintiff was convicted after a jury trial and was sentenced in 1993 to life

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imprisonment. Plaintiff argues that after the trial, he discovered two interview reports

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suppressed by the government that did not mention Gonzalez's travels to California.

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In plaintiff's first § 2255 motion, which he filed in 1996, he raised four grounds for

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relief: (1) a Jencks violation regarding the government's alleged withholding of the debriefing

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notes of Gonzalez; (2) Brady violations regarding the government's alleged failure to provide

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various documents, including Gonzalez's debriefing notes; (3) ineffective assistance of

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counsel; and (4) improper enhancement of his sentence for a leadership role. Feb. 1, 2000

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Order at 2 (CR 92-00113-PHX-FJM, doc. 249). The district judge held that the Jencks,

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Brady, and improper sentence enhancement claims were procedurally defaulted because

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plaintiff had not raised them on direct appeal, and thus could not be addressed on the merits.

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He also concluded that trial counsel's performance was not deficient. Accordingly, the

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district judge denied plaintiff's § 2255 motion.3

Feb. 1, 2000 Order at 6-7.

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Plaintiff argues that Assistant United States Attorney ("AUSA") Welty committed

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fraud on the habeas court by urging it to accept the trial testimony of Maria Del Carmen

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Gonzalez when responding to the § 2255 motion. Thus, plaintiff argues that the February

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1, 2000 denial of his § 2255 motion should be set aside based on fraud upon the court.

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Rule 60(d)(3), Fed. R. Civ. P. preserves the court's power to set aside a judgment due

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to fraud on the court. The definition of fraud upon the court is narrow. To apply, the

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misconduct must harm the very integrity of the judicial process. In re Levander, 180 F.3d

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1114, 1119 (9th Cir. 1999). We exercise the power to vacate judgments for fraud on the

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court only when it is established "by clear and convincing evidence." United States v. Estate

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Some documents list "Gonzales" as the spelling.

Plaintiff was allowed to file a second § 2255 motion concerning Apprendi, which
is not at issue here.
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of Stonehill, 660 F.3d 415, 443-44 (9th Cir. 2011) (citation omitted). Merely showing that

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a witness committed perjury, or that evidence was not disclosed, is not enough. Id. at 444.

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The test is not whether the movant was prejudiced, but whether the integrity of the process

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was compromised. Id. To prevail, plaintiff

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must demonstrate, by clear and convincing evidence, an effort by the
government to prevent the judicial process from functioning 'in the usual
manner.' [He] must show more than perjury or nondisclosure of evidence,
unless that perjury or nondisclosure was so fundamental that it undermined the
workings of the adversary process itself.
Id. at 445.

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Plaintiff has not made this showing. He speculates that Gonzalez lied about the trips

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to California because this information was not contained in two interview reports. But

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plaintiff has not offered clear and convincing evidence that she lied. Just because a piece of

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information is not in a report does not necessarily mean that it was fabricated. And plaintiff

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does not explain how a series of (unidentified) state and federal reports showed AUSA Welty

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that the testimony was false. Moreover, although plaintiff speculates that AUSA Welty

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mentioned Gonzalez's allegedly false testimony in responding to the § 2255 motion "in a

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scheme to defile the Judiciary," Mot. to Set Aside Judgment at 8, he does not show how the

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adversarial process was harmed. Indeed, the district judge did not even reach the merits of

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plaintiff's Brady and Jencks claims, which alleged government misconduct with respect to

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Gonzalez's notes, instead finding that these claims were procedurally defaulted. There is no

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indication from the district judge's order, and plaintiff has not explained, how Gonzalez's

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allegedly false testimony affected the § 2255 proceedings. In sum, plaintiff speculates, but

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has not established with clear and convincing evidence, that fraud was committed on the

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court with respect to his first § 2255 motion.

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Because plaintiff has not shown by clear and convincing evidence that there was

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misconduct in the habeas proceeding, let alone any misconduct that undermined the

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adversarial process, we reject plaintiff's fraud on the court claim.

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IT IS ORDERED DENYING plaintiff's motion to vacate the judgment (doc. 2).

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IT IS ORDERED DENYING plaintiff's motion "for an order holding that the
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procedural aspects of 'gate-keeping' provisions of the Anti-Terrorism and Effective Death

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Penalty Act of 1996 do not apply" on grounds of mootness (doc. 3).

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Plaintiff is urged to speak with a lawyer before submitting any future filings in this
closed case.
DATED this 13th day of September, 2012.

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