Gouveia v. USA

Filing 6

ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT'S SECOND MOTION UNDER 28 U.S.C.§ 2255; EXHIBIT A - Signed by JUDGE SUSAN OKI MOLLWAY on 5/27/2016. "Because Gouveia's Rule 60(b) motion must be treated as a "second or successive" § 2255 motion, the court refers the motion to the Ninth Circuit pursuant to Rule 22-3(a) for § 2255(h) certification purposes.The Clerk of Court is directed to send this order, including Exhibit A, to the Ninth Circuit. The Clerk of Court is also directed to terminate Gouveia's motions and to close this case pending the Ninth Circuit's § 2255(h) certification decision." (CR 08-00739 SOM-02; CV 13-004 84 SOM-RLP) (Attachments: # 1 Exhibit A)(emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on t he Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. The Ninth Circuit Court of Appeals, served, electronically, via NEF, on May 25, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
JOHN GOUVEIA, JR. (02),
)
)
Defendant.
)
_____________________________ )

Crim. No. 08-00739 (02) SOM;
Civ. No. 13-00484 SOM/RLP
ORDER REFERRING TO THE NINTH
CIRCUIT DEFENDANT’S SECOND
MOTION UNDER 28 U.S.C.
§ 2255; EXHIBIT A

ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT’S
SECOND MOTION UNDER 28 U.S.C. § 2255; EXHIBIT A
I.

INTRODUCTION.
This court previously denied an earlier § 2255 motion

filed by Defendant John Gouviea, Jr.

That motion included the

argument that relief was warranted because Jose Perez, an
individual who had refused to testify in the trial, had become
willing to testify.

The court did not rely on that circumstance

because Perez ultimately indicated that he would not provide any
testimony in any new proceeding.

Gouveia now moves under Rule

60(b) of the Federal Rules of Civil Procedure for reconsideration
of this court’s earlier ruling in light of what Gouveia says is
Perez’s renewed willingness to testify.
to this order.

See Exhibit A, attached

Perez appears to fluctuate, but most recently his

counsel has reported that Perez is unwilling to testify.
court does not now reach the merits of the motion.

This

Instead,

because the Rule 60(b) motion is a “second or successive” § 2255
motion, the court refers the matter to the Ninth Circuit Court of

Appeals pursuant to Ninth Circuit Rule 22-3(a) for certification
under 28 U.S.C. § 2255(h).
II.

FACTUAL BACKGROUND.
On August 18, 2010, a jury convicted Gouveia of three

drug charges.

See Verdict Form, Aug. 18, 2010, ECF No. 174.

Gouveia’s crimes included: 1) one count of conspiring to
distribute and possess with intent to distribute more than 500
grams of a mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, and salts of its isomers;
and 2) two counts of possession with intent to distribute the
same.

Id.
On February 4, 2011, the court sentenced Gouveia to 292

months in prison as to each count, with all terms to run
concurrently.

See Judgment, ECF No. 231.

The court also

sentenced him to 10 years of supervised release for each of the
counts, with all terms to run concurrently, as well as a $300
special assessment.

Id.

On February 9, 2011, Gouveia appealed.
232.

See ECF No.

The Ninth Circuit affirmed the judgment in a Memorandum

Decision filed on February 23, 2012.

See ECF No. 484-1.

Gouveia

petitioned for certiorari, but that was denied by the Supreme
Court on October 1, 2012.

See 133 S. Ct. 188 (Oct. 1, 2012).

On September 23, 2013, Gouveia filed his first Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence

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by a Person in Federal Custody.

See ECF No. 471.

In relevant

part, Gouveia claimed that, in March 2013, he had communicated
with Perez.

According to Gouveia, Perez said he would testify

that, at the time Perez had placed monitored calls to coDefendant Ramiro Hernandez, Perez had not known that Government
agents were recording the calls.

This was in conflict with trial

testimony by law enforcement agents.

Perez had refused to

testify at trial, and this court held him in civil contempt while
trial was proceeding and then, post-trial, imposed a criminal
contempt sentence.

Gouveia’s 2013 motion was based on

communications occurring long after Perez had completed his
criminal contempt sentence.

Gouveia also claimed that Perez was

willing to testify that Gouveia was innocent of the charges and
played no role in the importing and distributing of the
methamphetamine at issue in this case.

See Declaration of John

Gouveia, Jr., ECF No. 472-5, PageID #s 5953-54.
In a declaration dated July 11, 2014, however, Jose
Perez stated, contrary to Gouveia’s contention, that Perez would
not be a witness for either side or sign a declaration for either
side.

He said, “I do not wish to have any further involvement in

this case.”
# 7419.

Declaration of Jose Perez, ECF No. 516-1, PageID

This position was consistent with Perez’s earlier

refusals to testify at trial.

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On July 28, 2014, the court denied Gouveia’s first
§ 2255 motion and declined to issue a certificate of
appealability.

Given Perez’s continued refusal to testify, the

court ruled that Gouveia had failed to establish the factual
predicate for any claim based on Perez’s testimony.
519.

Gouveia appealed.

See ECF No. 522.

See ECF No.

On October 20, 2014,

the Ninth Circuit also denied Gouveia a certificate of
appealability.

See ECF No. 541.

On August 17, 2015, proceeding pro se, Gouveia filed a
motion under Rule 60(b) of the Federal Rules of Civil Procedure,
asking this court to vacate its judgment of August 25, 2015, and
to reopen his § 2255 motion.

In support of his Rule 60(b)

motion, Gouveia attached a new letter purporting to be from Perez
to Gouveia that stated:
Hey John[.] [H]ow are you doing? [H]ope your
[sic] ok. I’m Sorry I Refused to testify at
the evidentiary hearing. I was Just kind of
Scared, but I gave it a lot of thought, and
[am] ready to make things right. I’m willing
to testify at a evidentiary hearing to tell
the truth, I hope that its [sic] not to [sic]
late.
Jose Perez
P.S.

Sorry I couldn’t do it earlier

ECF No. 566-2.
The court appointed counsel for Gouviea and, on
November 13, 2015, ordered counsel to file a memorandum
addressing whether Gouveia must obtain § 2255(h) certification
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from the Ninth Circuit before proceeding with his
“reconsideration” motion.

See ECF No. 570.

This court also appointed counsel for Perez.

On

November 20, 2015, counsel for Jose Perez sent a letter to
Gouveia’s counsel, stating, “I spoke with Mr. Perez who is
unwilling to give a statement, be interviewed, or otherwise
respond to questioning regarding Mr. Gouveia’s case.

Mr. Perez’

position in this regard remains unchanged since July 6, 2014,
when he signed a declaration asserting he would not be a witness
for the Petitioner or Respondent in CV No. 13-00484 SOM or CR No.
08-00739 SOM.”

See ECF No. 588-10.

On February 26, 2016, Perez sent this court a letter,
stating, “I [am] Jose Perez[.] I’m writing this letter on my own
free will.

I was in a case with co-defendant John Gouveia, Jr.

and want to clear things up about the case.
to evidentiary hearing or whatever it takes.”

I am willing to go
See ECF No. 580.

In light of Perez’s letter dated February 25, 2016,
counsel for Gouviea asked counsel for Perez whether Perez would
indeed testify.

Ultimately, on March 21, 2016, Perez’s counsel

sent an e-mail to Gouveia’s counsel indicating that Perez “will
not testify on Mr. Gouveia’s behalf at an evidentiary hearing.
If subpoenaed and called to testify he will invoke his 5th
amendment privilege to remain silent.”

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ECF No. 588-12.

In a filing on May 24, 2016, ECF No. 594, and during a
telephone conference on May 26, 2016, Gouviea objected to a
referral of his motion to the Ninth Circuit for § 2255(h)
certification purposes.
III.

ANALYSIS.
A.

A District Court Lacks Jurisdiction To Address a
Second or Successive § 2255 Motion Absent a
Circuit Court Certification.

In passing the Antiterrorism and Effective Death
Penalty Act, Congress imposed “significant limitations on the
power of federal courts to award relief to prisoners who file
‘second or successive’ habeas petitions.”
Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009).

United States v.
In 28 U.S.C.

§ 2255(h), Congress said:
(h)

A second or successive motion must be
certified as provided in section 2244 by
a panel of the appropriate court of
appeals to contain–
(1)

newly discovered evidence that, if
proven and viewed in light of the
evidence as a whole, would be
sufficient to establish by clear
and convincing evidence that no
reasonable factfinder would have
found the movant guilty of the
offense; or

(2)

a new rule of constitutional law,
made retroactive to cases on
collateral review by the Supreme
Court, that was previously
unavailable.

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See also 28 U.S.C. § 2244(b)(3)(A)(“Before a second or successive
application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider
the application.”).
The Ninth Circuit has defined this limitation as
jurisdictional in nature.

Thus, in Ezell v. United States, 778

F.3d 762 (9th Cir. 2015), the Ninth Circuit said, “Section
2255(h)(2) creates a jurisdictional bar to the petitioner’s
claims: ‘If the petitioner does not first obtain our
authorization, the district court lacks jurisdiction to consider
the second or successive application.’”

Id. at 765 (quoting

Lopez, 577 F.3d at 1061).
Clearly, if Gouveia’s Rule 60(b) motion is actually a
second or successive § 2255 motion, this court lacks jurisdiction
to address it unless he receives § 2255(h) certification.
B.

The Pending Rule 60(b) Motion is Actually a Second
or Successive § 2255 Motion That Requires
§ 2255(h) Certification Before This Court May
Adjudicate It.

A defendant convicted of a crime in federal court is
generally limited to one motion under § 2255.

A defendant may

not bring a “second or successive” § 2255 motion without first
obtaining certification under the exacting standards of 28 U.S.C.
§ 2255(h).

See United States v. Washington, 653 F.3d 1057, 1059

(9th Cir. 2011).

“Because of the difficulty of meeting this
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standard, petitioners often attempt to characterize their motions
in a way that will avoid the strictures of § 2255(h),” including
characterizing their petitions as being asserted under Rule 60(b)
of the Federal Rules of Civil Procedure.

Washington, 653 F.3d at

1059.
Accordingly, courts examine whether a Rule 60(b) motion
“is actually a disguised second or successive § 2255 motion” that
must meet the certification requirements set forth in § 2255(h).
Id. at 1060.

To make that determination, courts examine the

substance of the motion to see whether the Rule 60(b) motion
contains a “claim” that makes it a § 2255 motion.
States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011).

See United
Examples of

Rule 60(b) motions making “claims” such that they should be
treated as “second or successive” § 2255 motions include those in
which: 1) a claim of constitutional error is raised that was
allegedly omitted from the original § 2255 motion because of
excusable neglect; 2) newly discovered evidence is presented that
allegedly justifies revisiting a claim that was denied in the
original § 2255 motion; 3) a subsequent change in substantive law
is cited as justifying relief from the previous denial of a
claim; 4) a new ground for relief is being raised; 5) an argument
is made that the previous resolution of a claim was incorrect;
and 6) the movant’s own conduct or counsel’s omissions allegedly

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warrant relief.

See Washington, 653 F.3d at 1063 (citing

Gonzalez, 545 U.S. at 530-32).
If the motion does not contain a “claim” it is a proper
Rule 60(b) motion.

Examples of proper Rule 60(b) motions include

those asserting a defect in the integrity of the earlier § 2255
proceeding such as a fraud on the court, see Buenrostro, 638 F.3d
at 722, or those claiming that the court erred in making a
procedural ruling (e.g., relating to a procedural default or
statute of limitations) that caused the court not to reach the
merits of the underlying claim, see Washington, 653 F.3d at 1063.
Gouveia’s purported Rule 60(b) motion is clearly a
“second or successive” § 2255 motion.

In his earlier motion,

Gouveia contended that Jose Perez would testify that Gouveia was
innocent of the charges and played no role in the importing and
distributing of the methamphetamine at issue in this case.

See

Declaration of John Gouveia, Jr., ECF No. 472-5, PageID #s 595354.

In denying the earlier motion, the court relied on Perez’s

ultimate refusal to testify and Gouveia’s resulting inability to
show any ground supporting relief.
In his Rule 60(b) motion, Gouveia claims that Perez has
changed his mind and is now willing to testify.

Gouveia says

that, “[i]n light of this new development and new evidence,”
the court should vacate its earlier judgment with respect to the
denial of his § 2255 motion.

ECF No. 566, PageID # 10260.

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In

Washington, the Ninth Circuit said that a Rule 60(b) motion based
on newly discovered evidence was a motion making a claim and
should be treated as a second § 2255 motion.

653 F.3d at 1063.

Under Washington, Gouveia’s Rule 60(b) motion must be deemed a
“second or successive” § 2255 motion for which Gouveia must get
§ 2255(h) certification before proceeding in this court.

This

court need not reach the issue of whether Perez’s purported
willingness to testify amounts to newly discovered evidence (the
Government claims that newly available evidence is
distinguishable from newly discovered evidence).

It is

sufficient that Gouveia is asserting a “claim” that makes what he
calls a Rule 60(b) motion actually a § 2255 motion.
C.

The Court Refers Gouviea’s Second § 2255 Motion to
the Ninth Circuit for § 2255 Certification
Purposes, Leaving Nothing for This Court To
Dismiss.

Ninth Circuit Rule 22-3(a) provides, “If a second or
successive petition or motion, or an application for
authorization to file such a petition or motion, is mistakenly
submitted to the district court, the district court shall refer
it to the court of appeals.”

Having determined that Gouveia’s

Rule 60(b) motion is actually a disguised “second or successive”
§ 2255 motion that requires § 2255(h) certification before it may
proceed in this court, the court refers the matter to the Ninth
Circuit pursuant to Rule 22-3(a) for § 2255(h) certification

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purposes.

This referral leaves nothing pending before this

court.
III.

CONCLUSION.
Because Gouveia’s Rule 60(b) motion must be treated as

a “second or successive” § 2255 motion, the court refers the
motion to the Ninth Circuit pursuant to Rule 22-3(a) for
§ 2255(h) certification purposes.
The Clerk of Court is directed to send this order,
including Exhibit A, to the Ninth Circuit.

The Clerk of Court is

also directed to terminate Gouveia’s motions and to close this
case pending the Ninth Circuit’s § 2255(h) certification
decision.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 27, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

United States of America v. Gouveia, Crim. No. 08-00739 SOM (02); Civ. No. 1300484 SOM/RLP; ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT'S SECOND MOTION
UNDER 28 U.S.C. § 2255; EXHIBIT A

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