Ellis v. United States of America

Filing 19

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)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

UNITED STATES OF AMERICA,

9

11
For the Northern District of California

United States District Court

10

12
13

No. CR-01-0344 EMC-20

Plaintiff,

[No. C-07-1844 EMC]

v.

ORDER DENYING MOTION TO
REOPEN § 2255 HABEAS CASE

KIM ELLIS,
Defendant.
___________________________________/

14
15

Petitioner Kim Ellis, proceeding pro se, has filed a motion to reopen his § 2255 habeas case.

16

Having considered the parties’ briefs and accompanying submissions, as well as all other evidence of

17

record, the Court hereby DENIES the request for relief.

18
19

I.

DISCUSSION

In his papers, Mr. Ellis argues that his case should be reopened in accordance with the

20

Supreme Court’s decision in Custis v. United States, 511 U.S. 485 (1994) and the Ninth Circuit’s

21

decision in United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999). In Custis, the Supreme Court

22

indicated in dicta that, where a criminal defendant’s federal sentence is enhanced by a prior state

23

sentence and the defendant successfully attacks that state sentence, he may then apply for a

24

reopening of the federal sentence. See Custis, 511 U.S. at 497. In LaValle, the Ninth Circuit

25

adopted the position set forth in the Custis dicta and expressly held that “a defendant who

26

successfully attacks a state conviction may seek review of any federal sentence that was enhanced

27

because of the prior state conviction.” LaValle, 175 F.3d at 1108.

28

1

In the instant case, Mr. Ellis’s federal sentence was enhanced because he had pled guilty in

2

1995 to a felony drug offense under California Health & Safety Code § 11351.5. The problem for

3

Mr. Ellis is that, notwithstanding LaValle and Custis, he has not shown that he has successfully

4

attacked the underlying state conviction used to enhance his federal sentence. As Judge Patel noted

5

in her order of June 22, 2011, the state conviction must be vacated first before he may seek any

6

relief with respect to his federal sentence. See Docket No. 1991 (Order at 1) (stating that “the fact

7

that [Mr. Ellis] intends to or is in fact challenging those state convictions could make no change in

8

his federal sentence until those convictions are vacated”).1 Accordingly, Mr. Ellis’s motion to

9

reopen is denied.2
To the extent Mr. Ellis has moved for reconsideration of Judge Patel’s order of May 7, 2008,

11
For the Northern District of California

United States District Court

10

in which she denied habeas relief, the motion is also denied.3 Under Civil Local Rule 7-9, a party

12

must first seek leave to file a motion to reconsider before filing such a motion. See Civ. L.R. 7-9(a).

13

Mr. Ellis did not ask for leave. More importantly, a party seeking leave to file a motion to

14

reconsider must show, e.g., “[t]he emergence of new material facts or a change of law occurring

15

after the time of [the challenged] order,” in order to be entitled to relief. Civ. L.R. 7-(b). Mr. Ellis

16

implicitly contends that he has met this standard because of an opinion that was issued in August

17

2011 (a decision issued well after Judge Patel’s order of May 7, 2008). See United States v.

18

Simmons, 649 F.3d 237 (4th Cir. 2011). But Simmons does not constitute a material change in law

19
1

20
21

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.
2

22
23
24
25
26
27
28

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”).
3

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.

2

rather a Fourth Circuit decision. Therefore, it is not binding authority on this Court. Second,

3

Simmons does not address the issue of whether the imposition of a sentence suspended can qualify

4

as a conviction that can trigger a sentencing enhancement under 21 U.S.C. § 841. Instead, Simmons

5

held that, where the criminal defendant could not have received a sentence exceeding one year’s

6

imprisonment under the prior state conviction, that prior state conviction did not meet the definition

7

of a felony drug offense for purposes of federal sentencing enhancement. No such situation is

8

presented here. Unlike the prior conviction at issue in Simmons, Mr. Ellis’s 1995 drug offense

9

conviction was punishable by imprisonment exceeding one year. Likewise, Carachuri-Rosendo v.

10

Holder, 130 S. Ct. 2577 (2010), which Mr. Ellis cites in his traverse, does not address that specific

11
For the Northern District of California

justifying relief. First, Simmons is not a Supreme Court decision or a Ninth Circuit decision but

2

United States District Court

1

issue. See id. at 2583 (“determin[ing] whether the mere possibility, no matter how remote, that a

12

2-year sentence might have been imposed in a federal trial is a sufficient basis for concluding that a

13

state misdemeanant who was not charged as a recidivist has been ‘convicted’ of an ‘aggravated

14

felony within the meaning of [8 U.S.C.] § 1229b(a)(3)”).

15

Finally, the Court notes that, to the extent Mr. Ellis is moving to reopen his case on a new

16

basis not previously identified – i.e., because California Health & Safety Code § 11351.1 does not

17

have a mens rea element – see Traverse at 3-4 (citing Shelton v. Secretary, Dep’t of Corrections, No.

18

6:07-cv-839-Orl-35-KRS, 2011 U.S. Dist. LEXIS 86898 (M.D. Fla. July 27, 2011, currently on

19

appeal to the Eleventh Circuit), the Court denies the motion on several grounds. First, Mr. Ellis did

20

not raise this argument until his reply brief, even though he could have raised it in his opening

21

motion. Second, and more importantly, § 11351.1 is distinguishable from the Florida statute at issue

22

in Shelton. The California courts have construed § 11351.1 as having a mens rea element. In

23

People v. Atlas, 64 Cal. App. 4th 523 (1998), the court noted that “the elimination of a mens rea

24

requirement in [this] enhancement statute [§ 11353.6(b)] . . . did not violate due process because the

25

mens rea element was contained in the underlying statute [i.e., § 11351.1] which was incorporated

26

in the enhancement provision.” Id. at 529-30 (emphasis added.)

27

///

28

///

3

1

II.

2

For the foregoing reasons, Mr. Ellis’s motion for relief is denied.

3

This order disposes of Docket No. 2019 in Case No. CR-01-0344 EMC.

CONCLUSION

4
5

IT IS SO ORDERED.

6
7

Dated: January 24, 2011

8
_________________________
EDWARD M. CHEN
United States District Judge

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4