Arman Tangabekyan v. United States of America

Filing 8

ORDER DENYING PETITIONERS MOTION FOR RECONSIDERATION 7 by Judge Dean D. Pregerson . (lc). Modified on 3/8/2017 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARMAN TANGABEKYAN,

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Petitioner,

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v.
UNITED STATES OF AMERICA,

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Respondents.

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Case No. CV 15-5338
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION
[Dkt. 7]

Presently before the court is Petitioner’s Motion to Set Aside a Previous § 2255

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Judgment pursuant to Fed. R. Civ. P. 60(b)(4) & (6). (Dkt. 7.) Having reviewed the

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submission, the court DENIES the Motion.

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Petitioner pled guilty to a racketeering conspiracy, bank fraud, and aggravated

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identity theft. (Dkt. 1 at 1 ¶¶ 4-5.) Petitioner was sentenced to eighty-two months in

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prison on September 19, 2014. (Id. ¶¶ 2-3.) There was no direct appeal. (Id. at 1-5.)

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Petitioner filed his section 2255 motion on July 13, 2015. (Id. at 1.) Among the claims

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raised in the Motion, Petitioner argued that his defense counsel provided ineffective

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assistance of counsel in violation of Petitioner’s Sixth Amendment rights by failing to
object to the inclusion of prior state court drug conviction in his pre-sentence report

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(PSR), which resulted in a higher criminal history category. (Id. at 5.) Specifically,

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Petitioner contended that the prior conviction should not count as a prior conviction

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because it was a deferred entry of judgment for possession of a controlled substance. (Id.)

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On February 10, 2016, the Court denied the Motion and, on this point, explained that

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“despite Petitioner’s diversionary disposition of a deferred entry of judgment, the

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conviction still counts a sentence under the Guidelines because it arose from an

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admission of guilt.” (Dkt. 5 at 5.) On May 17, 2016, the court denied a certificate of

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appealability. (Dkt. 6.)
Petitioner filed the instant motion for reconsideration on February 23, 2017. (Dkt.

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7.) The gravamen of Petitioner’s motion is that the court’s Order failed to consider the

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Ninth Circuit’s decision in United States v. Suarez, 682 F.3d 1214, 1222 (2012), which

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provided that a deferred judgment like Petitioner’s does not qualify as a prior conviction

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under the Sentencing Guidelines.
Rule 60(b) provides that a district court “may relieve a party or its legal

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representative from a final judgment, order, or proceeding” for any one of certain

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enumerated grounds. Fed. R. Civ. P. 60(b). Ordinarily, a federal prisoner challenging the

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legality of his sentence must do so by a motion under 28 U.S.C. § 2255, filed in the

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sentencing court. 28 U.S.C. § 2255(a); see Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir.

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2008). The prisoner may not bring a second section 2255 motion unless he meets the

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specific requirements of section 2255(h) and obtains authorization to file a “second or

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successive motion” from the court of appeals. United States v. Washington, 653 F.3d 1057,

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1059 (9th Cir.2011). He cannot avoid this requirement by characterizing his motion as a

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Rule 60(b) motion. Id. at 1059–60; United States v. Hernandes, 708 F.3d 680, 681 (9th Cir.

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2013).

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When a federal prisoner brings a Rule 60(b) motion that arguably attacks his

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conviction or sentence, the district court must determine whether the motion is a proper

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Rule 60(b) motion or a section 2255 motion in disguise. See Gonzalez v. Crosby, 545 U.S.

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524, 532–33. Although the dividing line is not always precise, a disguised section 2255
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motion asserts substantive claims, while a Rule 60(b) motion asserts some defect in the

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integrity of the federal habeas proceedings. Gonzalez, 545 U.S. at 532; Hernandes, 708 F.3d

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at 681. In the Motion for Reconsideration, Petitioner explains that “the instant motion

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clearly presents a ‘true’ 60(b) claim because it is only challenging the [sic] the district

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court’s determination in denying petitioner’s § 2255 was not substantially justified where

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its legal position clearly offends existing precedent on the same issue . . . .” (Dkt. 7 at 1-2.)

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This essentially concedes that the motion at issue is a substantive rather than procedural

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challenge to the district court’s prior Order. Thus, the court must conclude that section

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2255(h) applies. Given that Petitioner has not received permission from the court of

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appeals to file a successive section 2255 petition, the district court is without jurisdiction

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to consider the instant motion. See Washington, 653 F.3d at 1065. 1

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IT IS SO ORDERED.

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Dated: March 8, 2017

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___________________________________
DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE

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To the extent that Petitioner’s argument is properly considered as a Rule 60(b) motion rather than
a second successive habeas petition, the court would nonetheless deny the motion. The case
Petitioner contends that the court failed to consider addresses whether a deferred entry of
judgment qualifies as a prior conviction under a statute referring to “prior conviction[s] [that] have
‘become final.’” Suarez, 682 F.3d 1214, 1220 (9th Cir. 2012) (quoting 21 U.S.C. § 841(b)(1)(A))).
The Suarez panel expressly distinguished statutes that did not include such language. Id. The
provision at issue here has no similar limitation; thus, the Suarez holding can be distinguished.
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