Paulino v. United States of America

Filing 2

Order dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Frances M. Tydingco-Gatewood on 10/21/2015. (fad, ) **Modified on 10/21/2015 to edit docket text**(fad, ).

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DISTRICT COURT OF GUAM

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TERRITORY OF GUAM

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EDDIE PABLO PAULINO,

Criminal Case No. 10-00063
Civil Case No. 15-00023

Petitioner,

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vs.

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ORDER
re Motion to Vacate Judgment 60(d)(3) and
Motion for Judgment on the Pleadings

UNITED STATES OF AMERICA,
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Respondent.

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This matter is before the court on two motions which the Petitioner has captioned as a

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“Motion to Vacate Judgment 60(d)(3)” and a “Motion for Judgment on the Pleadings.” See ECF

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Nos. 196 and 198. As more fully discussed below, the court considers these motions to be “second

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or successive” Section 2255 motions. Because the Ninth Circuit Court of Appeals has not authorized

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the Petitioner to file a second or successive habeas petition, this court does not have jurisdiction to

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consider the motions. Accordingly, the court hereby DISMISSES the Petitioner’s Motion to Vacate

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Judgment 60(d)(3) and the Motion for Judgment on the Pleadings.
BACKGROUND

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1.

Conviction, Sentence and Appeal

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On October 6, 2010, the Petitioner was charged by Indictment with the following offenses:

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Conspiracy to Distribute Methamphetamine Hydrochloride (Count I) in violation of 21 U.S.C. §§

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841(a)(1), 846 and § 960(c); Conspiracy to Commit Money Laundering (Count II) in violation of 18

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U.S.C. §§ 2 and 371; Attempted Possession of Methamphetamine Hydrochloride with Intent to

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///

Eddie Pablo Paulino v. United States, Criminal Case No.10 00063, Civil Case No. 15 00023
Order re: Motion to Vacate Judgment 60(d)(3) and Motion for Judgment on the Pleadings

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Distribute (Count IV) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Money

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Laundering (Counts V-XV) in violation of 18 U.S.C. § 1956 (a)(1)(A)(i). ECF No. 1.

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On February 23, 2011, the jury returned a verdict finding Petitioner guilty as to Count IV
Attempted Possession of Methamphetamine Hydrochloride with Intent to Distribute

and

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acquitted him on all of the other charges.1 ECF No. 130. The Petitioner then renewed his motion

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for acquittal made at the close of the government’s evidence, renewed the motion for acquittal he

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made at the close of all of the trial evidence, and moved this court for judgment of acquittal or, in

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the alternative, a new trial, pursuant to Rules 29(c) and 33 of the Federal Rules of Criminal

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Procedure. See ECF No. 137. Among the arguments raised therein, the Petitioner asserted there was

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insufficient evidence presented to the jury to prove that he knew there was 109.5 grams of

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methamphetamine in the package. The court eventually denied the Petitioner’s motion for judgment

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of acquittal and the motion for new trial in its entirety. See ECF No. 142.

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On September 20, 2011, the court sentenced the Petitioner to 120 months imprisonment. See
Judgment, ECF No. 163.

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Thereafter, the Petitioner appealed, and on October 29, 2012, the United States Court of

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Appeals for the Ninth Circuit affirmed the Petitioner’s conviction and sentence. See ECF No. 181.

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2.

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On March 13, 2013, the Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence

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pursuant to 28 U.S.C. § 2255 (the “Section 2255 motion”). See ECF No. 183. Therein, the

Previous Habeas Corpus Petition

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Count IV of the Indictment specifically charged the Petitioner with knowingly attempting
to possess with intent to distribute approximately 109.5 grams net weight of methamphetamine
hydrochloride. See Indictment, ECF No. 1. The jury did not return a special verdict with regard to
drug quantity in Count IV, because the drug quantity was included in the jury instruction concerning
the essential elements of Count IV such that the first element required the jury to find beyond a
reasonable doubt that “the defendant intended to possess 109.5 grams net weight of
methamphetamine hydrochloride with intent to distribute it to another person.” See Closing Jury
Instructions No. 22, ECF No. 111. Additionally, at defense counsel’s request, this specific drug
quantity was inserted into the verdict form for Count IV. Trial Tr., vol. III, 538, Feb. 15, 2011, ECF
No. 175 and Verdict Form at 2, ECF No. 130. Thus, there was no need for the jury to return a special
verdict as to the drug quantity involved in Count IV.

Eddie Pablo Paulino v. United States, Criminal Case No.10 00063, Civil Case No. 15 00023
Order re: Motion to Vacate Judgment 60(d)(3) and Motion for Judgment on the Pleadings

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Petitioner asserted an ineffective assistance of counsel claim, which was not raised on direct appeal.

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The Petitioner argued that his attorney was ineffective for failing to argue at sentencing and on

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appeal that his sentence should be based on an unknown amount of drugs because the jury did not

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make a unanimous determination as to the drug quantity.

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On September 24, 2014, the court found that the Petitioner failed to demonstrate that

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counsel’s performance was deficient under the first prong of the Strickland2 test and accordingly

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denied the Section 2255 motion. See Order, ECF No. 190.

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On November 13, 2014, the Petitioner appealed the court’s denial of his Section 2255
motion. See Notice of Appeal, ECF No. 192.
On February 15, 2015, the Ninth Circuit Court of Appeals denied the Petitioner’s request for
a certificate of appealability. See ECF No. 193.
DISCUSSION

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Unsatisfied by the court’s ruling, on April 2, 2015, the Petitioner filed the instant Motion to

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Vacate Judgment 60(d)(3), arguing that his sentence should be vacated because of “fraud on the

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court.” See ECF No. 196. Therein, the Petitioner moved, pursuant to Fed. R. Civ. P. 60(d)(3) “for

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habeas relief” and asserted the court “wrongfully sentenced him under two issues[:] (1) defective

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indictment,3 and (2) constructive amendment of the indictment.”4 Id. at 1.

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Then on July 28, 2015, the Petitioner filed a Motion for Judgment on the Pleadings. See ECF

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No. 198. This motion raised the same arguments the Petitioner made in his Motion to Vacate

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Judgment 60(d)(3). Id.

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Strickland v. Washington, 466 U.S. 668 (1984).

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The Petitioner alleged that the language of the indictment was defective because he was
indicted for Attempted Possession with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2, yet these statutes do not criminalize the attempt to commit the offense charged.
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The Petitioner asserts the jury instructions given by the court with regard to Count IV
constructively amended the indictment by (1) changing the word “attempt” to “intended” and (2)
deleting the word “approximately.”

Eddie Pablo Paulino v. United States, Criminal Case No.10 00063, Civil Case No. 15 00023
Order re: Motion to Vacate Judgment 60(d)(3) and Motion for Judgment on the Pleadings

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Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

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petitioner is generally limited to one motion under Section 2255 and is precluded from bringing a

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“second or successive” Section 2255 motion unless it is certified by the appropriate court of appeals

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to contain either: (1) new evidence such “that no reasonable factfinder would have found [the

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petitioner] guilty of the offense,” or (2) a new rule of constitutional law. See 28 U.S.C. § 2255(h).

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“Because of the difficulty of meeting this standard, petitioners often attempt to characterize their

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motions in a way that will avoid the strictures” of Section 2255(h). United States v. Washington, 653

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F.3d 1057, 1059 (9th Cir. 2011). This appears to be what the Petitioner is attempting here by

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bringing his challenge under the guise of a Rule 60(d)(3) motion.

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Rule 60 permits a district court to set aside a civil judgment, order, or proceedings under

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certain specified conditions. Here, the Petitioner’s motion is made pursuant to Rule 60(d)(3), which

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authorizes the court to “set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). The

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Petitioner’s argument regarding the indictment, however, are not properly considered pursuant to

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Rule 60(d)(3) because what matters is the relief sought, not the label given by the Petitioner.

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Petitioner is still challenging his underlying conviction and sentence, which is subject to second or

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successive petition restrictions.

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A habeas petitioner may not rely on Rule 60 to raise a new claim that would otherwise be

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barred as a second or successive Section 2255 petition. United States v. Buenrostro, 638 F.3d 720,

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722 (9th Cir. 2011). See also Gonzalez v. Crosby, 545 U.S. 524, 532 (allowing the presentation of

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new claims in a Rule 60 motion “would impermissibly circumvent the requirement that a successive

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habeas petition be precertified by the court of appeals as falling within an exception to the

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successive-petition bar.” While Gonzales involved a Rule 60(b) motion, its reasoning is equally

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applicable to motions under Rule 60(d).

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A Rule 60 motion constitutes a second or successive habeas petition where it seeks to present

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new evidence in support of a claim already litigated, seeks to add a new ground for relief, attacks the

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court’s “previous resolution of a claim on the merits,” or “otherwise challenges the federal court’s

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“determination that there exist or do not exist grounds entitling a petitioner to habeas corpus

Eddie Pablo Paulino v. United States, Criminal Case No.10 00063, Civil Case No. 15 00023
Order re: Motion to Vacate Judgment 60(d)(3) and Motion for Judgment on the Pleadings

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relief[.]” Washington, 653 F.3d at 1063. The court may, however, adjudicate a Rule 60 motion on

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the merits where it attacks a defect in the integrity of the prior habeas proceeding. Gonzales, 545

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U.S. at 531-32. See also Buenrostro, 638 F.3d at 722 (“To show a defect in the integrity of his first

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§ 2255 proceeding, Buenrostro must point to something that happened during that proceeding that

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rendered its outcome suspect.”).

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In this case, the Petitioner does not identify any defect in the integrity of his first habeas

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proceeding. Instead, he attacks his original conviction and sentence through the presentation of new

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grounds for relief challenging Count IV of the underlying indictment. As such, his motion is

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properly construed as seeking relief pursuant to Section 2255 rather than Rule 60(d).5 The Petitioner

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is not allowed to circumvent AEDPA’s second or successive petition requirements simply by

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labeling the petition or motion as something other than what it is. The court can not address the

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merits of the Petitioner’s motions because he has not received authority from the Ninth Circuit to

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file this successive Section 2255 motion. See 28 U.S.C. § 2255(h).

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establishes that the Petitioner subsequently received such authorization prior to filing the instant

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motions.

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Nothing in the record

CONCLUSION

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Without the necessary certification from the Court of Appeals for the Ninth Circuit, this court

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is without jurisdiction to consider the Petitioner’s motions which are disguised successive

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Section 2255 motions. Accordingly, the court has no option but to dismiss the Petitioner’s motions.

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A number of courts have held that a Rule 60(d) motion that does not challenge the integrity
of the habeas proceeding itself also constitutes a second or successive claim for relief under Section
2255. See Heffington v. United States, Nos. CV-F096-5295, CR-F-93-5021 OWW, 2009 WL
2043012, at *4 (E.D. Cal July 13, 2009) (rejecting petitioner’s Rule 60(d)(1) motion as second or
successive claim for relief under Section 2255); Todd v. United States, No. C11-0470JLR, 2012 WL
5351845 (W.D. Wash. Oct. 29, 2012) (construing petitioner’s Rule 60(d)(3) motion as a second or
successive habeas petition); United States v. Montalvo, No. CR 89-00062 WBS GGH, 2013 WL
5705711, at *2 (E.D. Cal. Oct. 16, 2013) (denied petitioner’s attempt to apply Rule 60(d)’s savings
clause, which exempted claims such as “fraud on the court” from the one year time bar, stating “[i]f
the alleged fraud on the habeas court includes or implies fraud in the underlying proceeding, then
the motion will ordinarily be considered a second or successive petition.”) (internal quotation and
citation omitted).

Eddie Pablo Paulino v. United States, Criminal Case No.10 00063, Civil Case No. 15 00023
Order re: Motion to Vacate Judgment 60(d)(3) and Motion for Judgment on the Pleadings

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Pursuant to Circuit Rule 22-3, the court directs the Clerk of Court to transfer the motions (ECF

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Nos. 196 and 198) to the Ninth Circuit Court of Appeals.

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In light of the court’s ruling, the court additionally denies as moot the Motion to Appoint

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Counsel, ECF No. 201.6 Finally, the Petitioner also filed a Notice fo An Order or Judgment, which

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requested the court provide him with “a copy of any order, motion or judgment immediately after

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it is filed on the . . . docket sheet.” See ECF No. 202. The court hereby grants said request.

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SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Oct 20, 2015

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vacated.

The Magistrate Judge’s Order filed on October 16, 2015, see ECF No. 203, is hereby