Ellis v. United States of America
Filing
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ORDER Denying Motion to Reopen Section 2255 Habeas Case. Signed by Judge Edward M. Chen on 1/24/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/24/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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For the Northern District of California
United States District Court
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No. CR-01-0344 EMC-20
Plaintiff,
[No. C-07-1844 EMC]
v.
ORDER DENYING MOTION TO
REOPEN § 2255 HABEAS CASE
KIM ELLIS,
Defendant.
___________________________________/
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Petitioner Kim Ellis, proceeding pro se, has filed a motion to reopen his § 2255 habeas case.
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Having considered the parties’ briefs and accompanying submissions, as well as all other evidence of
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record, the Court hereby DENIES the request for relief.
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I.
DISCUSSION
In his papers, Mr. Ellis argues that his case should be reopened in accordance with the
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Supreme Court’s decision in Custis v. United States, 511 U.S. 485 (1994) and the Ninth Circuit’s
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decision in United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999). In Custis, the Supreme Court
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indicated in dicta that, where a criminal defendant’s federal sentence is enhanced by a prior state
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sentence and the defendant successfully attacks that state sentence, he may then apply for a
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reopening of the federal sentence. See Custis, 511 U.S. at 497. In LaValle, the Ninth Circuit
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adopted the position set forth in the Custis dicta and expressly held that “a defendant who
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successfully attacks a state conviction may seek review of any federal sentence that was enhanced
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because of the prior state conviction.” LaValle, 175 F.3d at 1108.
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In the instant case, Mr. Ellis’s federal sentence was enhanced because he had pled guilty in
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1995 to a felony drug offense under California Health & Safety Code § 11351.5. The problem for
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Mr. Ellis is that, notwithstanding LaValle and Custis, he has not shown that he has successfully
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attacked the underlying state conviction used to enhance his federal sentence. As Judge Patel noted
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in her order of June 22, 2011, the state conviction must be vacated first before he may seek any
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relief with respect to his federal sentence. See Docket No. 1991 (Order at 1) (stating that “the fact
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that [Mr. Ellis] intends to or is in fact challenging those state convictions could make no change in
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his federal sentence until those convictions are vacated”).1 Accordingly, Mr. Ellis’s motion to
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reopen is denied.2
To the extent Mr. Ellis has moved for reconsideration of Judge Patel’s order of May 7, 2008,
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For the Northern District of California
United States District Court
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in which she denied habeas relief, the motion is also denied.3 Under Civil Local Rule 7-9, a party
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must first seek leave to file a motion to reconsider before filing such a motion. See Civ. L.R. 7-9(a).
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Mr. Ellis did not ask for leave. More importantly, a party seeking leave to file a motion to
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reconsider must show, e.g., “[t]he emergence of new material facts or a change of law occurring
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after the time of [the challenged] order,” in order to be entitled to relief. Civ. L.R. 7-(b). Mr. Ellis
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implicitly contends that he has met this standard because of an opinion that was issued in August
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2011 (a decision issued well after Judge Patel’s order of May 7, 2008). See United States v.
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Simmons, 649 F.3d 237 (4th Cir. 2011). But Simmons does not constitute a material change in law
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A prior state conviction must be attacked through available state procedures and possibly
through federal habeas under 28 U.S.C. § 2254, not in this § 2255 proceeding. See Custis, 511 U.S.
at 497.
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Like Judge Patel, this Court declines to make any ruling on whether Mr. Ellis has
diligently sought vacatur of the state conviction. See Docket No. 1991 (Order at 2) (“leav[ing] that
issue for another day, since petitioner does not yet have an order of vacatur and it remains to be seen
whether he will be successful in that effort”).
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The government suggests that the Court should construe Mr. Ellis’s motion as a second or
successive motion for habeas relief which is not permitted absent authorization from the Ninth
Circuit. See 28 U.S.C. § 2255(h) (providing that “[a] second or successive motion must be certified
as provided in section 2244 [28 U.S.C. § 2244] by a panel of the appropriate court of appeals”); see
also Rule 9 on Section 2255 Proceedings (stating that, “[b]efore presenting a second or successive
motion, the moving party must obtain an order from the appropriate court of appeals authorizing the
district court to consider the motion, as required by 28 U.S.C. § 2255, para. 8”). However, the
motion is more fairly construed as a motion to reconsider given that it simply makes the same
arguments as made in the earlier motion.
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rather a Fourth Circuit decision. Therefore, it is not binding authority on this Court. Second,
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Simmons does not address the issue of whether the imposition of a sentence suspended can qualify
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as a conviction that can trigger a sentencing enhancement under 21 U.S.C. § 841. Instead, Simmons
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held that, where the criminal defendant could not have received a sentence exceeding one year’s
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imprisonment under the prior state conviction, that prior state conviction did not meet the definition
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of a felony drug offense for purposes of federal sentencing enhancement. No such situation is
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presented here. Unlike the prior conviction at issue in Simmons, Mr. Ellis’s 1995 drug offense
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conviction was punishable by imprisonment exceeding one year. Likewise, Carachuri-Rosendo v.
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Holder, 130 S. Ct. 2577 (2010), which Mr. Ellis cites in his traverse, does not address that specific
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For the Northern District of California
justifying relief. First, Simmons is not a Supreme Court decision or a Ninth Circuit decision but
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United States District Court
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issue. See id. at 2583 (“determin[ing] whether the mere possibility, no matter how remote, that a
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2-year sentence might have been imposed in a federal trial is a sufficient basis for concluding that a
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state misdemeanant who was not charged as a recidivist has been ‘convicted’ of an ‘aggravated
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felony within the meaning of [8 U.S.C.] § 1229b(a)(3)”).
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Finally, the Court notes that, to the extent Mr. Ellis is moving to reopen his case on a new
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basis not previously identified – i.e., because California Health & Safety Code § 11351.1 does not
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have a mens rea element – see Traverse at 3-4 (citing Shelton v. Secretary, Dep’t of Corrections, No.
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6:07-cv-839-Orl-35-KRS, 2011 U.S. Dist. LEXIS 86898 (M.D. Fla. July 27, 2011, currently on
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appeal to the Eleventh Circuit), the Court denies the motion on several grounds. First, Mr. Ellis did
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not raise this argument until his reply brief, even though he could have raised it in his opening
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motion. Second, and more importantly, § 11351.1 is distinguishable from the Florida statute at issue
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in Shelton. The California courts have construed § 11351.1 as having a mens rea element. In
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People v. Atlas, 64 Cal. App. 4th 523 (1998), the court noted that “the elimination of a mens rea
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requirement in [this] enhancement statute [§ 11353.6(b)] . . . did not violate due process because the
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mens rea element was contained in the underlying statute [i.e., § 11351.1] which was incorporated
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in the enhancement provision.” Id. at 529-30 (emphasis added.)
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II.
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For the foregoing reasons, Mr. Ellis’s motion for relief is denied.
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This order disposes of Docket No. 2019 in Case No. CR-01-0344 EMC.
CONCLUSION
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IT IS SO ORDERED.
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Dated: January 24, 2011
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_________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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