Begay v. United States of America

Filing 44

ORDER: Defendant/Movant's Motion to Reopen Habeas Corpus Pursuant to Fed.R. of Civ.P. Rule 60(B)(1-6) 43 is denied; no Certificate of Appealability shall issue and that the Defendant is not entitled to appeal in forma pauperis because he has f ailed to show that reasonable jurists would find this Court's assessment of the constitutional claims debatable or wrong, or that reasonable jurists would find it debatable whether he has stated a valid claim of the denial of a constitutional right or debatable whether the Court was correct in its procedural ruling. Signed by Senior Judge Paul G Rosenblatt on 7/7/16. (REW)

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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,
Plaintiff,

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vs.
Ivan Ray Begay,
Defendant/Movant.

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No. CV-10-08221-PCT-PGR
No. CR-00-01222-PCT-PGR
ORDER

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Having considered the defendant’s Motion to Reopen Habeas Corpus

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Pursuant to Fed.R. of Civ.P. Rule 60(B)(1-6), filed June 27, 2016, the Court finds

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that it should be summarily denied. The issues raised in the motion, such as the

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petitioner’s intoxication-based actual innocence claim, have all been rejected by the

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Court in previous rulings. See e.g., Order (Doc. 40 in CV-10-08221) (“These new

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contentions regarding his intoxication, the factual predicates for which existed and

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were ripe when Begay’s first § 2255 petition was filed, are in substance a new claim

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of error regarding his underlying conviction which is properly treated as a disguised

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§ 2255 motion. United States v, Washington, 653 F.3d 1057, 1063 (9th Cir.2011).

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Because this motion constitutes a second or successive § 2255 petition, the Court

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has no jurisdiction to consider it due to Begay’s failure to first obtain the required

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certification from the Ninth Circuit Court of Appeals. Id. at 1065; 28 U.S.C. §

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2255(h).”)

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As both this Court and the Ninth Circuit Court of Appeals have repeatedly

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ruled, the petitioner’s § 2255 habeas action has been terminated and cannot be

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reopened. The defendant simply has no viable claim of actual innocence, and no

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viable claim of any alleged procedural irregularity related to his guilty plea that can

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now be litigated any further. Therefore,

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IT IS ORDERED that the defendant’s Motion to Reopen Habeas Corpus
Pursuant to Fed.R. of Civ.P. Rule 60(B)(1-6) (Doc. 43 in CV-10-08221) is denied.

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IT IS FURTHER ORDERED that no certificate of appealability shall issue and

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that the defendant is not entitled to appeal in forma pauperis because he has failed

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to show that reasonable jurists would find this Court’s assessment of the

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constitutional claims debatable or wrong, or that reasonable jurists would find it

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debatable whether he has stated a valid claim of the denial of a constitutional right

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or debatable whether the Court was correct in its procedural ruling.

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DATED this 7th day of July, 2016.

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