v. Harris

Filing 56

ORDER DENYING 48 MOTION TO ALTER OR AMEND THE SEPTEMBER 4 ORDER AND JUDGMENT.(whalc2, COURT STAFF) (Filed on 11/10/2014).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL RAY HARRIS,
No. MC 11-80261 WHA
Petitioner,

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For the Northern District of California

United States District Court

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v.
ORDER DENYING
MOTION TO ALTER OR
AMEND THE SEPTEMBER 4
ORDER AND JUDGMENT

RANDY TEWS,
Respondent.
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Under Federal Rules of Civil Procedure 59(e) and 60(b), counsel for petitioner Michael

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Ray Harris move to alter or amend an order and judgment filed on September 4, 2014 (Dkt. No.

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45). Among other things, the September 4 order denied Harris’ Section 2241 habeas petition,

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holding that Harris did not have a right to update his presentence report from 1990.

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A short recap is needed. In 1988, the State of California sentenced Harris to twenty-five

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years to life for conspiracy to commit murder, as well as a consecutive three-year sentence for

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bodily injury. Thereafter, the United States District Court for the Central District of California

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issued a writ of habeas corpus ad prosequendum so that Harris could face prosecution on various

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federal drug charges. A jury later convicted Harris and five co-defendants on those federal

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charges, with co-defendants Mario Ernesto Villabona-Alvarado and Brian Bennett convicted on

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a “continuing criminal enterprise” charge involving Harris and others. Then, in 1990, Judge

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William J. Rea of the Central District of California sentenced Harris to 235 months in custody

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consecutive to his state prison sentence.

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Harris has since filed a habeas petition in the instant action, claiming that he was

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“entitled to correction of inaccuracies, outdated, and irrelevant information contained in his

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[p]resentence [r]eport” from 1990 (Habeas ¶ 46). That petition did not explain what exactly is

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“inaccurate” about the PSR. But in his later, supplemental declaration, Harris asserted how the

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PSR supposedly became inaccurate in light of our court of appeals’ decision, which occurred

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five years after the PSR was created (Harris Decl. ¶ 10) (emphasis added):

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For the Northern District of California

United States District Court

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In my case, the PSR relies heavily on my ostensible involvement
in what was then described as a continuing criminal enterprise
(CCE). The PSR contains numerous inferences to the fact that I
was involved in a CCE of five or more persons in which my
activities was supervised by Villabona[-Alvarado] and Bennett.
Likewise the relevant conduct assessment and putative
enhancement was based in large part on the fact that this
conspiracy was considered, by virtue of the CCE convictions, to
be the type of criminal organization so dangerous to the safety of
society as to require the most severe penalty.

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Some five years after my PSR was prepared, however, the Ninth
Circuit reversed the CCE conviction, dramatically altering the
character of the drug activity at issue in my case. The
information contained in the PSR concerning the CCE[-]related
issues, however, was never excised from the PSR. The Ninth
Circuit’s decision reversing the CCE convictions renders many
of the PSR’s determinations legally unfair and insupportable
characterizations of the offense such that the information being
relied upon by the Case Manager now is erroneous.

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To be clear, the reversal of the CCE conviction was for Villabona-Alvarado and Bennett,
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and not Harris himself. See United States v. Barona, 56 F.3d 1087, 1096–99 (9th Cir. 1995)
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(reversing Villabona-Alvarado and Bennett’s CCE conviction due to legally inadequate jury
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instructions on “continuing criminal enterprise”). Also, there was nothing inaccurate about
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Harris’ PSR at the time of his sentencing. The PSR only purportedly became inaccurate after
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Barona reversed Villabona-Alvarado and Bennett’s CCE conviction, which occurred five years
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after Harris was sentenced in 1990.
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The September 4 order then denied Harris’ habeas petition to correct his PSR, among
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other requests for relief. In particular, the September 4 order recognized that “[w]hile
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inaccuracies in the PSR may be corrected through habeas review, petitioner cites no authority
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that a PSR must be updated throughout a term of confinement merely because information
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contained within the report has become stale” (Dkt. No. 45 at 7). Judgment was then entered

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against Harris on September 4 (Dkt. No. 46).

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Now, Harris moves under Rules 59(e) and 60(b) to alter or amend the September 4 order

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and judgment. In his view, the September 4 order failed to mention his argument that the PSR is

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now inaccurate in light of Barona’s decision on Villabona-Alvarado and Bennett’s CCE

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conviction. Harris thus asks that the undersigned judge amend the September 4 order and

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judgment “to permit correction of such inaccuracies” in his PSR and to “prevent manifest

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injustice . . .” (Br. 3).

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There are four grounds upon which a Rule 59(e) motion may be
granted: 1) the motion is “necessary to correct manifest errors of
law or fact upon which the judgment is based;” 2) the moving
party presents “newly discovered or previously unavailable
evidence;” 3) the motion is necessary to “prevent manifest
injustice;” or 4) there is an “intervening change in controlling
law.”

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Turner v. Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (internal citations

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omitted). But none of those four grounds exists here. In determining whether Harris had a right

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to update his PSR, the September 4 order did consider Harris’ claim that the PSR was inaccurate

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and outdated (among other arguments), but nevertheless held that there is “no authority for the

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proposition that a PSR must be updated throughout a term of confinement merely because

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information contained within the report has become stale” (Dkt. No. 45 at 7). To date, neither

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side has provided the Court with any such authority that permits a PSR to be amended in light of

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information that comes after sentencing and judgment. At most, Harris relies on United States v.

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Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007), which addressed a PSR error that reportedly

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existed at the time of the sentencing.

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For the Northern District of California

United States District Court

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The present motion is DENIED. For Rule 59(e), our court of appeals has instructed:

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Furthermore, even assuming that a district court has the authority to amend the PSR in

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the way that Harris now seeks, this order declines to do so based on the circumstances here. The

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first reason concerns the antiquity of the information at issue. At this point, the undersigned

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judge has no personnel or records available to shed light on this case. Harris’ underlying set of

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events occurred over twenty years ago in a different district — i.e., the Central District of
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California, where his PSR and sentencing actually took place (and where any paper records of

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his case might exist, if they exist at all). Harris’ counsel have not provided the necessary record

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to show what purported error needs correction, and indeed, it remains unclear whether Harris’

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PSR contains a true error. There is no argument that the PSR was somehow incorrect when it

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was created in 1990. The main contention now is that the PSR became outdated after our court

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of appeals’ decision for Villabona-Alvarado and Bennett, which happened five years after

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Harris’ sentencing. That leads to the second reason, laches. This motion, if it was to be made at

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all, should have been made many years earlier.

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Rule 60(b) also does not aid Harris’ position. In his present motion, Harris suggests that
Rule 60(b)(1) applies because of the purported “mistake” in failing to consider his argument as

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For the Northern District of California

United States District Court

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based on Barona. But as discussed above, that suggestion is inaccurate. The September 4 order

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did consider Harris’ arguments as to supposed inaccuracies with his PSR, and still held that

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Harris had no right to update the PSR (Dkt. No. 45 at 6). Accordingly, to the extent that Harris

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seeks to excise CCE-related parts from his PSR, this order finds that a motion under Rules 59(e)

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and 60(b) is unwarranted.

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Finally, Harris contends that the conclusion of the September 4 order should omit the
following two sentences:
A certificate of appealability will not be issued. Reasonable
jurists would not find ‘the district court’s assessment of the
constitutional claims debatable or wrong.’ Slack v. McDaniel,
529 U.S. 473, 484 (2000).

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Indeed, our court of appeals has held that Section 2253(c)(1) does not require a certificate of
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appealability before a Section 2241 petition can be heard on appeal. Forde v. U.S. Parole
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Comm’n, 114 F.3d 878, 879 (9th Cir. 1997). Nonetheless, in submitting his present motion,
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Harris has also filed a notice of appeal of the September 4 order, and our court of appeals has
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since issued a letter indicating that “[a] briefing schedule will not be set until the court
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determines whether a certificate of appealability should issue” (Dkt. No. 52) (emphasis added).
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As such, this order declines to alter or amend the conclusion of the September 4 order,

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and instead reserves for our court of appeals the question of whether a certificate of appealability

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should issue here. Harris’ present motion is therefore DENIED.

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IT IS SO ORDERED.

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Dated: November 10, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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