Ray A. Maxwell v. United States of America

Filing 21

AMENDED ORDER RE: PETITIONER'S APPLICATION FOR 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY [CV 17] by Judge Ronald S.W. Lew. This Court GRANTS the Government's Motion to Dismiss [CR 1066] and DISMISSES Petitioner's Application [CR 1064, CV 17]. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 United States of America
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Plaintiff/Respondent,

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v.
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15 Ray Maxwell,
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Defendant/Petitioner.

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CV 10-9766 RSWL
CR 04-732-RSWL-1
AMENDED ORDER RE:
PETITIONER’S APPLICATION
FOR 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A
PERSON IN FEDERAL
CUSTODY [CV 17]

Before the Court is Petitioner Ray Maxwell’s

19 (“Petitioner”) Application for 28 U.S.C. § 2255 to
20 Vacate, Set Aside, or Correct Sentence by a Person in
21 Federal Custody filed February 10, 2014 [CV 17].

In

22 response, the Government filed a Motion to Dismiss
23 Petitioner’s Application [CR 1066].

Having reviewed

24 all papers submitted pertaining to this Motion, the
25 Court NOW FINDS AND RULES AS FOLLOWS:
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The Court hereby GRANTS the Government’s Motion to

27 Dismiss [CR 1066] and DISMISSES Petitioner’s
28 Application [CR 1064, CV 17].
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I.BACKGROUND
On March 27, 2007, Petitioner pled guilty to

3 Conspiracy to Commit Armed Bank Robbery pursuant to 18
4 U.S.C. § 371, one count of Attempted Armed Bank Robbery
5 and two counts of Armed Bank Robbery pursuant to 18
6 U.S.C. § 2113(a), and one count of Discharging a
7 Firearm During a Crime of Violence pursuant to 18
8 U.S.C. § 924(c)(1)(A)(iii) [CR 544, 556].

This Court

9 sentenced Petitioner to a term of 360 months on May 5,
10 2008 [CR 883-884].

Petitioner appealed his judgment on

11 May 13, 2008 [CR 879] and the Ninth Circuit affirmed
12 Petitioner’s conviction on direct review on January 21,
13 2010 [CR 997].
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Petitioner now claims that because he was under the

15 influence of medications to treat his mental illness at
16 the time of his guilty plea, he was not competent to
17 accept this plea deal or to plead guilty, and his trial
18 counsel rendered ineffective assistance of counsel by
19 allowing him to do so.
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Petitioner previously filed a Motion to Vacate, Set

21 Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
22 on December 17, 2010 [CV 1, CR 1014].
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Petitioner also filed a motion requesting that the

24 Court recuse itself on August 25, 2011 [CV 10].

That

25 motion was referred to Judge Wilson on August 29, 2011
26 [CV 11].

Judge Wilson denied Petitioner’s motion to

27 have Judge Lew recuse himself on September 23, 2011 [CV
28 13].
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Subsequent to Judge Wilson’s ruling, on December 9,

2 2011, this Court denied Petitioner’s original Motion to
3 Vacate, Set Aside, or Correct Sentence pursuant to 28
4 U.S.C. § 2255 [CV 14].

This Court also denied

5 Petitioner’s Motion for Reconsideration filed January
6 5, 2012 [CV 15, 16].
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Petitioner filed a Notice of Appeal of the Court’s

8 rulings denying Petitioner’s motions on March 26, 2012
9 [CR 1052].

This Court issued an Order denying a

10 certificate of appealability on April 18, 2012 [CR
11 1054].

The Ninth Circuit followed suit on February 8,

12 2013 [CR 1059].
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II.

LEGAL STANDARD

14 A.

Successive 28 U.S.C. § 2255 Motions

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Congress enacted the Antiterrorism and Effective

16 Death Penalty Act in 1996, “codifying the judicially
17 established principles reflected in the abuse-of-the18 writ doctrine and further restricting the availability
19 of relief to habeas petitioners.”

United States v.

20 Lopez, 577 F.3d 1053, 1060-61 (9th Cir. 2009) (citing
21 Felker v. Turpin, 518 U.S. 651, 664 (1996)).
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“A petitioner is generally limited to one motion

23 under § 2255, and may not bring a ‘second or successive
24 motion’ unless it meets the exacting standards of 28
25 U.S.C. § 2255(h).”

United States v. Washington, 653

26 F.3d 1057, 1059 (9th Cir. 2011).

Under that section,

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a motion cannot be considered unless it has

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first been certified by the court of appeals to
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contain either “(1) newly discovered evidence

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that, if proven and viewed in light of the

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evidence as a whole, would be sufficient to

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establish by clear and convincing evidence that

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no reasonable factfinder would have found the

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movant guilty of the offense,” or “(2) a new

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rule of constitutional law, made retroactive to

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cases on collateral review by the Supreme

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Court, that was previously unavailable.”

10 Id. (quoting 28 U.S.C. § 2255(h)).

If § 2255(h)

11 applies, but a petitioner has not received permission
12 from the court of appeals to file a successive § 2255
13 petition, then the district court is without
14 jurisdiction.

Id. at 1065.

In other words, if a

15 petitioner fails to comply with the procedure
16 requirements for filing a successive § 2255 motion, his
17 motion must ordinarily be dismissed.

See United States

18 v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (citing
19 Nelson v. United States, 115 F.3d 136 (2d Cir. 1997)).
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III.

DISCUSSION

Petitioner has previously filed a § 2255 motion

22 with this Court [CV 1, CR 1014], which this Court
23 denied on December 9, 2011 [CV 14, CR 1046].

The

24 grounds for Petitioner’s previous § 2255 Motion
25 included a claim of ineffective assistance of counsel
26 by virtue of Petitioner’s medication-influenced state.
27 Dkt. # CV 1 at 5.

Petitioner’s instant Application is

28 premised on the exact same ground - that he was unable
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1 to make a knowing and voluntary plea due to his drug2 influenced state and that his counsel failed to present
3 that information to the Court.
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Mot. at 2.

Petitioner’s instant Application is clearly a

5 “second or successive” § 2255 motion.
6 2255(h).

28 U.S.C. §

Petitioner plainly appears to contend as much

7 as he titles his Application as one for 28 U.S.C. §
8 2255 [CV 17].
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Alternatively, Petitioner appears to contend that

10 his Motion is one to amend made under Federal Rule of
11 Civil Procedure 15(c).

Reply at 2.

However, this

12 Court has already ruled on Petitioner’s previous § 2255
13 motion [CV 14, CR 1046] and Petitioner’s motion to
14 amend is more properly construed as a second or
15 successive § 2255 motion (see Beaty v. Schriro, 554
16 F.3d 780, 783 n.1 (9th Cir. 2009) (holding that a
17 petitioner cannot amend his petition after the district
18 court has ruled and proceedings have begun in the
19 circuit court)).

This is particularly true as the

20 grounds for his instant Application are practically
21 identical to those raised in his previous § 2255
22 motion.

See Allen, 157 F.3d at 664 (quoting United

23 States v. Gutierrez, 116 F.3d 412 (9th Cir. 1997)) (“a
24 ‘ground is successive if the basic thrust or gravamen
25 of the legal claim is the same, regardless of whether
26 the basic claim is supported by new and different legal
27 arguments.’”).
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Petitioner’s similar contentions under 28 U.S.C. §
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1 2255(f)(3) and (4) and Federal Rule of Civil Procedure
2 7 are also without merit.
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Reply at 1.

28 U.S.C. § 2255(f)(3) and (4) simply provide that

4 a one year limitations period on the filing of § 2255
5 motions runs from “(3) the date on which the right
6 asserted was initially recognized by the Supreme Court,
7 if that right has been newly recognized by the Supreme
8 Court and made retroactively applicable to cases on
9 collateral review” and “(4) the date on which the facts
10 supporting the claim or claims presented could have
11 been discovered through the exercise of due diligence.”
12 28 U.S.C. § 2255(f)(3) and (4).

Neither provision

13 applies here as Petitioner does not make any arguments
14 regarding a newly recognized right made retroactively
15 applicable to cases on collateral review or regarding
16 newly discovered evidence.
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Federal Rule of Civil Procedure 7 simply lists the

18 types of pleadings allowed and provides that “[a]
19 request for a court order must be made by motion.”
20 Fed. R. Civ. P. 7.

It is entirely unclear how this

21 Rule applies to the instant matter.
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In any event, the Ninth Circuit has not certified

23 that Petitioner’s instant Application contains either
24 newly discovered evidence or a new rule of
25 constitutional law.

Petitioner does not appear to

26 offer any such certification.

Without such a

27 certification, this Court does not have jurisdiction to
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1 consider Petitioner’s Application.
2 F.3d at 1065.

Washington, 653

Accordingly, the Court DISMISSES

3 Petitioner’s Application as barred by 28 U.S.C. §
4 2255(h)’s bar against second or successive motions.
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IV.

CONCLUSION

For the foregoing reasons, this Court GRANTS the

7 Government’s Motion to Dismiss [CR 1066] and DISMISSES
8 Petitioner’s Application [CR 1064, CV 17].
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11 IT IS SO ORDERED.
12 DATED: June 23, 2014
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HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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