Callahan v. USA

Filing 3

ORDER: Movant's Rule 60(b) motion (Doc. 981 in CR 89-178-004-PHX-GMS) is denied and the civil action opened in connection with this Motion is dismissed without prejudice. The Clerk of Court must provide Movant with a copy of the form recommend ed by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255. Gary Patrick Callahan. Signed by Judge G Murray Snow on 11/1/2013. (ALS)

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KAB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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No. CV 13-2030-PHX-GMS (DKD)

Plaintiff,

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vs.

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CR 89-178-004-PHX-GMS

Gary Patrick Callahan,

ORDER

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Defendant/Movant.

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Movant Gary Patrick Callahan, who is confined in the Federal Correctional

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Institution in Seagoville, Texas, filed a pro se “Motion Pursuant to Rule 60(b)(6).”1 The

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Court will deny the motion and dismiss this case.

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I.

Background

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On February 4, 1993, after a jury trial, Movant was convicted of conspiracy to

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possess with intent to distribute and possession with intent to distribute cocaine, in

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violation of 21 U.S.C. §§ 841 and 846. On May 24, 1993, the Court sentenced Movant to

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a 330-month term of imprisonment followed by five years on supervised release. On

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May 22, 1995, the Ninth Circuit Court of Appeals affirmed Movant’s conviction and

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sentence. U.S. v. Akers, Nos. 93-10325, 93-10399, 56 F.3d 73 (9th Cir. 1995).

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On March 12, 1997, Movant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set

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To facilitate the opening of this case, the Clerk of the Court labeled the Motion
a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody” on the Court’s docket.

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Aside, or Correct Sentence by a Person in Federal Custody. On July 5, 2000, the Court

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denied the § 2255 Motion and judgment was entered. On July 17, 2000, Movant moved

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to alter or amend the § 2255 judgment and the Court granted the motion in part, to allow

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further briefing on one of the issues raised in the motion to alter or amend the judgment.

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On April 3, 2002, the Court denied the Motion to Alter or Amend the Judgment. On June

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24, 2004, the Ninth Circuit Court of Appeals affirmed the § 2255 judgment in part,

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vacated in part, and remanded for an evidentiary hearing based on Movant’s ineffective

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assistance of counsel claims. U.S. v. Callahan, No. 02-15960, 102 Fed. Appx. 608 (9th

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Cir. 2004).

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On February 14, 2005, Movant filed a Motion for Relief from the § 2255

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Judgment. On June 23, 2005, the Court held an evidentiary hearing in accordance with

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the Court of Appeals’ mandate. On February 2, 2006, the Court denied the § 2255

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motion and denied the Motion for Relief from Judgment. On August 6, 2008, the Ninth

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Circuit Court of Appeals’ affirmed the § 2255 judgment. U.S. v. Callahan, No. 06-

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15321, 286 Fed. Appx. 521 (9th Cir. 2008).

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On November 1, 2010, Movant filed a Motion for Downward Departure of

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Sentence pursuant to 18 U.S.C. § 3582(c)(2). On December 17, 2010, the Court denied

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the Motion for Downward Departure of Sentence and, on October 27, 2011, the Court of

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Appeals affirmed that decision. U.S. v. Callahan, No. 10-10611, 455 Fed. Appx. 766

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(9th Cir. 2011).

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II.

Motion for Relief from Judgment under Rule 60(b)

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On October 4, 2013, Movant filed the instant “Motion Pursuant to Rule 60(b)(6).”

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In his Motion, Movant states that he raises “objections against the consequences of a

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prior sentencing judgment this Court rendered on May 24, 1993, and which it reinforced

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subsequent to an evidentiary hearing held on June 23, 2005. [The] sentencing proceeding

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was based upon plain error.” (CR 89-178-PHX-GMS, Doc. 981 at 1). Movant further

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states that he does not “challenge [his] conviction under any constitutional grounds, but

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rather the sentencing proceeding.” (Id.at 2) (emphasis in original).
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“A federal prisoner who is ‘claiming the right to be released upon the ground that

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the sentence was imposed in violation of the Constitution or laws of the United States,’

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28 U.S.C. ' 2255(a), may file a ' 2255 motion with the district court that imposed the

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sentence.” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). “As a

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general rule, ' 2255 provides the exclusive procedural mechanism by which a federal

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prisoner may test the legality of detention.” Id. (quoting Harrison v. Ollison, 519 F.3d

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952, 955 (9th Cir. 2008). Further, “[a] petitioner is generally limited to one motion under

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' 2255 and may not bring a ‘second or successive motion’ unless it meets the exacting

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standards of 28 U.S.C. ' 2255(h).” Id.

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Section 2255(h) provides that a second or successive motion cannot be considered

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unless it has first been certified by the court of appeals to contain either “‘(1) newly

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discovered evidence that, if proven and viewed in light of the evidence as a whole, would

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be sufficient to establish by clear and convincing evidence that no reasonable factfinder

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would have found the movant guilty of the offense,’ or (2) ‘a new rule of constitutional

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law, made retroactive to cases on collateral review by the Supreme Court, that was

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previously unavailable.’” Id. (quoting 28 U.S.C. ' 2255(h)).

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Once a § 2255 motion has been denied, federal prisoners sometimes characterize a

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subsequent motion challenging their convictions or sentences as seeking relief from

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judgment under Rule 60(b)2 in order to circumvent ' 2255(h). Id. at 1059-60. When a

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Under Rule 60(b), a movant may seek relief from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason that justifies
relief. Fed. R. Civ. P. 60(b). Thus, clauses (1) through (5) provide specific reasons for
granting relief, while clause (6) acts as a catch-all allowing the court to grant relief for
“any other reason justifying relief from the operation of the judgment.” Hamilton v.
Newland, 374 F.3d 822, 825 (9th Cir. 2004) (citing Fed. R. Civ. P. 60(b)).
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Rule 60(b) motion is actually a disguised second or successive ' 2255 motion, it must

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meet the criteria set forth in ' 2255(h). Id. at 1059-60 (citation omitted).

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As explained in Washington,

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[T]he 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.”

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653 F.3d at 1059 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532, 534 (2005)).

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However, “a motion that does not challenge ‘the integrity of the proceedings, but in effect

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asks for a second chance to have the merits determined favorably,’ is raising a ‘claim’

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that takes it outside the purview of Rule 60(b).” Id. at 1063 (citations omitted).

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Movant’s Rule 60(b) motion does not challenge the integrity of his ' 2255

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proceedings. Rather, he seeks to challenge his sentence. Movant states that the U.S.

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Supreme Court’s decisions in In re Winship, 397 U.S. 385 (1970), Ivan v. City of New

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York, 407 U.S. 203 (1972), Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New

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Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 253 (2004), United States

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v. Booker, 543 U.S. 220 (2005), and, expressly, Alleyne v. United States, 133 S.Ct. 2151

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(2013), demonstrate that his sentencing proceeding was “in plain error.”

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Because Movant does not point to anything that happened in his prior ' 2255

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proceeding that rendered its outcome suspect, he fails to allege or show any basis for

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relief in connection with that proceeding pursuant to Rule 60(b). Rather, Movant seeks to

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bring a new claim for relief, which is wholly independent of the claims adjudicated in his

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first ' 2255 proceeding. For that reason, his Rule 60(b) motion must be treated as a

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disguised ' 2255 motion.

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As noted above, in order to bring a second ' 2255 motion, a federal prisoner must

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first obtain the certification of the relevant Court of Appeals, in this case, the Ninth

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Circuit Court of Appeals. 28 U.S.C. ' 2255(h). Movant has not obtained certification by
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the Ninth Circuit Court of Appeals to file a second or successive ' 2255 motion.

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Accordingly, the Court will deny the instant motion for lack of jurisdiction.

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IT IS ORDERED:

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(1)

Movant=s Rule 60(b) motion (Doc. 981 in CR 89-178-004-PHX-GMS) is

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denied and the civil action opened in connection with this Motion (CV 13-2030-PHX-

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GMS (DKD)) is dismissed without prejudice.

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(2)

The Clerk of Court must provide Movant with a copy of the form

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recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave

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to File Second or Successive Petition Under 28 U.S.C. ' 2254 or Motion Under 28

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U.S.C. ' 2255.
Dated this 1st day of November, 2013.

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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

APPLICATION FOR LEAVE TO FILE SECOND OR SUCCESSIVE
PETITION UNDER 28 U.S.C. § 2254 OR § 2255
Docket Number ____________________ (to be provided by court)

Petitioner's name ___________________________________
Prisoner registration number _______________________
Address

_________________________
_________________________
_________________________
_________________________

Instructions - Read Carefully
1.

This application, whether handwritten or typewritten, must be legible and
signed by the petitioner under penalty of perjury. An original and five (5)
copies must be provided to the Clerk. The application must comply with
9th Circuit Rule 22-3, which is attached to this form.

2.

All questions must be answered concisely and in relationship to the
questioned asked on this form.

3.

The petitioner shall serve a copy of this application and any attachments
on respondent and must complete and file a proof of service with this
application.

4.

The petitioner shall attach to this application copies of the magistrate
judge's report and recommendation and the district court's opinion in any
prior federal habeas proceeding under 28 U.S.C. § 2254 or § 2255 or state
why such documents are unavailable to petitioner.
_______________
This form has not been officially adopted by the Ninth Circuit Court of Appeals, but
prisoners are encouraged to use this form to comply with Ninth Circuit Rule 22-3 pending the
completion of official rule-making procedures. Questions should be directed to the Office of
Staff Attorneys, Motions/Pro Se Unit, [phone]

You Must Answer the Following Questions:
1.

What conviction(s) are you challenging?
_____________________________________________________________
_____________________________________________________________

2.

In what court(s) were you convicted of these crime(s)?
_____________________________________________________________
_____________________________________________________________

3.

What was the date of each of your conviction(s) and what is the length of
each sentence?
_____________________________________________________________
_____________________________________________________________

For questions (4) through (9), provide information separately for each of your
previous section 2254 or 2255 proceedings. Use additional pages if necessary.
4.

With respect to each conviction and sentence, have you ever filed a petition
or motion for habeas corpus relief in federal court under 28 U.S.C. § 2254 or
No G
§ 2255?
Yes G
(a) In which federal district court did you file a petition or motion?
_______________________________________________________
(b) What was the docket number? ________________________________
(c) On what date did you file the petition/motion? ___________________

5.

6.

What grounds were raised in your previous habeas proceeding? (list all
grounds and issues previously raised in that petition/motion)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Did the district court hold an evidentiary hearing?
Yes G No G
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7.

How did the district court rule on your petition/motion?
a.

District court dismissed petition/motion,
if yes, on what grounds? __________________________________

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District court denied petition/motion;

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District court granted relief;
if yes, on what claims and what was the relief?
_______________________________________________________

(attach copies of all reports and orders issued by the district court)

8.

On what date did the district court decide your petition/motion?
_____________________________________________________________

9.

Did you file an appeal from that disposition?

Yes G

No G

(a) What was the docket number of your appeal? ____________________
(b) How did the court of appeals decide your appeal? ________________

10.

11.

State concisely each and every ground or issue you wish to raise in your
current petition or motion for habeas relief. Summarize briefly the facts
supporting each ground or issue.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
For each ground raised, was it raised in the state courts? If so, what did the
state courts rule and when?
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_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

12.

For each ground/issue raised, was this claim raised in any prior federal
petition/motion? (list each ground separately)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

13.

For each ground/issue raised, does this claim rely on a new rule of
constitutional law? (list each ground separately and give case name and
citation for each new rule of law)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

14.

For each ground/issue raised, does this claim rely on newly discovered
evidence? What is the evidence? Why has this newly discovered evidence
not been previously available to you? (list each ground separately)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

15.

For each ground/issue raised, does the newly discovered evidence establish
your innocence? How?

revised 2/02

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_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

16.

For each ground/issue raised, does the newly discovered evidence establish a
federal constitutional error? Which provision of the Constitution was
violated and how?
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

17.

Provide any other basis for your motion not previously stated.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

Signature:

_________________________ Date: _______________

Proof of Service on Respondent MUST be Attached.

revised 2/02

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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
95 Seventh Street
San Francisco, CA 94103
NINTH CIRCUIT RULE 22-3
(a) Applications.
Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in the
district court must file an application in the Court of Appeals demonstrating entitlement to such
leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed
with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition
or motion, or an application for leave to file such a petition or motion, is mistakenly submitted to
the district court, the district court shall refer it to the court of appeals.
The application must:
(1) include a copy of the second or successive 2254 petition or 2255 motion which the
applicant seeks to file in the district court; and
(2) state as to each claim presented whether it previously has been raised in any state or
federal court and, if so, the name of the court and the date of the order disposing of such
claim(s); and
(3) state how the requirements of sections 2244(b) or 2255 have been satisfied.
(b) Excerpts of Record.
If reasonably available to the petitioner, the application must include copies of all relevant state
court orders and decisions and all dispositive district court orders in prior federal proceedings. If
excerpts of record filed by petitioner are incomplete, respondent may file a supplemental excerpt
of record.
(c) Service.
The petitioner must serve a copy of the application and all attachments on the respondent, and must
attach a certificate of service to the application filed with the court.
(d) Response.
In noncapital cases, no response is required unless ordered by the court. In capital cases where an
execution date is scheduled and no stay is in place, respondent shall respond to the application and
file supplemental excerpts as soon as practicable. Otherwise, in capital cases, respondent shall
respond and file supplemental excerpts within ten days of the date the application is served.
(e) Decision.
The application will be determined by a three-judge panel. In capital cases where an execution date
is scheduled and no stay is in place, the court will grant or deny the application, and state its reasons
therefore, as soon as practicable.
(f) Stays of Execution.
If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay
of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as
practicable. If the court grants leave to file a second or successive application, the court shall stay
petitioner's execution pending disposition of the second or successive petition by the district court.