Motta v. USA

Filing 18

ORDER REFERRING TO NINTH CIRCUIT DEFENDANT ETHAN MOTTA'S SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2255; EXHIBIT A re 14 - Signed by JUDGE SUSAN OKI MOLLWAY on 8/4/2016. (CR 06-00080 SOM; CV 14-00090 SOM-BMK)< /font> " Motta's Rule 60(b) motion must be treated as a "secondor successive" § 2255 motion. This court therefore refers the motion to the Ninth Circuit pursuant to Rule 22-3(a) for § 2255(h) certifica tion 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 Motta's motion as well as the Government motion to dismiss and to close this case pending theNinth Circuit's § 2255(h) certification decision." Motion terminated: 14 MOTION Pro Se Motion for Relief from Judgment or Order Pursuant to Rule 60(b)(1) & (2) & (6) Federal Rules of Civi l Procedure filed by Ethan Motta. Attachments: # 1 Exhibit "A" (Part 1 of 5), # 2 Exhibit "A" (Part 2 of 5), # 3 Exhibit "A" (Part 3 of 5), # 4 Exhibit "A" (Part 4 of 5), # 5 Exhibit "A" (Part 5 of 5 ) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Ethan Motta served by first class mail at the address of record on August 4, 2016. The Ninth Circuit Court of Appeals served electronically.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ETHAN MOTTA,
Defendant.

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CR. NO. 06-00080 SOM
CIV. NO. 14-00090 SOM-BMK
ORDER REFERRING TO NINTH
CIRCUIT DEFENDANT ETHAN MOTTA’S
SECOND OR SUCCESSIVE PETITION
UNDER 28 U.S.C. § 2255; EXHIBIT
A

ORDER REFERRING TO NINTH CIRCUIT DEFENDANT ETHAN MOTTA’S
SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2255
Before this court is Defendant Ethan Motta’s “Pro Se
Motion For Relief From Judgment or Order Pursuant to Rule
60(b)(1), (2) and (6) Federal Rules of Civil Procedure.”

Having

received briefs from Motta and the Government on the issue of
whether this court may consider the merits of Motta’s motion,
this court construes that motion as a second or successive motion
brought under 28 U.S.C. § 2255, notwithstanding Motta’s
characterization of his motion as brought under Rule 60(b) of the
Federal Rules of Civil Procedure.

As Motta presents no evidence

that he has met the requirement in § 2255(h) that a second or
successive motion be certified by the Ninth Circuit, this court
transfers the motion, a copy of which is attached as Exhibit A to
this order, to the Ninth Circuit pursuant to Circuit Rule 223(a).

I.

BACKGROUND INFORMATION
Following a lengthy jury trial, Motta and Co-Defendant

Rodney Joseph were found guilty in 2009 of several felonies, the
most serious being counts of murder and attempted murder in aid
of racketeering activity.

By statute, life in prison was the

mandatory sentence for those counts.

Motta and Joseph appealed,

and the Ninth Circuit affirmed in a memorandum disposition filed
on January 10, 2012.

Motta filed a certiorari petition with the

Supreme Court, which denied the petition on February 19, 2013.
The case has remained active since then, as shown by the hundreds
of docket entries in the case file between then and now.
The present motion is not the first one that this court
views as brought by Motta under § 2255.

Motta’s first § 2255

motion is labeled as having been brought under § 2255.
that it was signed on February 21, 2014.

It states

The envelope in which

the motion was mailed has a postmark of the same day, although a
transmittal letter included with the motion bears a date of
February 20, 2014.

The motion was received by this court on

February 24, 2014.

Conscious that the “prison mailbox” rule

applied and uncertain whether equitable tolling might be
warranted, this court ordered briefing on the issue of whether
Motta’s first § 2255 motion was timely.

This court ultimately

appointed counsel to represent Motta at an evidentiary hearing on
whether the first § 2255 motion had been submitted within the

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one-year deadline provided for in § 2255(f), or, if not, whether
equitable tolling applied.
On June 6, 2014, while the first § 2255 motion was
pending and before this court had resolved the issue of the
timeliness of that first § 2255 motion, Motta placed into the
prison mail system his “Motion Seeking Relief To Vacate, Set
Aside or Correct Sentence Based on Recent Supreme Court
Precedent.”

This motion sought relief “in light of the Supreme

Court’s recent ruling in United States v. Alleyne, decided June
17th, 2013.”

The motion also asked that, “[i]f the district

court for whatever reason decides that ‘Alleyne’ does not apply
retroactively to his case, th[e]n the defendant respectfully ask
that the Honorable court allow him to raise his ‘Alleyne’
argument as a supplemental argument in his 2255 petition.”

The

motion was accompanied by a letter addressed to the Clerk of
Court that included the following statement: “Let it be known
this is not a second and successive 2255 motion, but strictly an
‘Alleyne’ motion and should not be misconstrued as a second and
successive 2255.”
During June 2014 and in the following months, there was
considerable activity in this case.

With the timeliness of

Motta’s first § 2255 motion still unresolved, Motta, Joseph, and
the Government were also filing other papers, and the Ninth
Circuit was communicating with Joseph and this court about

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matters pending on appeal.

Possibly because of the flurry of

activity at the time, neither the Government’s response to
Motta’s “Alleyne” motion nor this court’s order denying the
“Alleyne” motion on October 14, 2014, addressed the issue of
whether the “Alleyne” motion was actually a second or successive
motion under § 2255 that should have been transferred to the
Ninth Circuit for consideration as to whether certification
should issue.

Instead, in a short order, this court denied the

“Alleyne” motion on the ground that Alleyne v. United States, 133
S. Ct. 2151 (2013), did not apply retroactively to cases on
collateral review.

The Government now characterizes Motta’s

“Alleyne” motion as having been a second or successive § 2255
motion, and the court is inclined to agree.

However, as it turns

out, this does not affect the present order one way or the other.
The first § 2255 motion was not decided until months
after this court had denied Motta’s “Alleyne” motion.

On June

16, 2015, following a change in defense counsel and an
evidentiary hearing, this court dismissed the first § 2255 motion
as untimely and declined to issue a certificate of appealability.
On November 2, 2015, the Ninth Circuit similarly denied Motta’s
request for a certificate of appealability.
Motta filed the purported Rule 60(b) motion now pending
before this court on June 15, 2016, having signed it on June 13,
2016.

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II.

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)

(2)

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

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

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.”).

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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).
Thus, if Motta’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 from the
Ninth Circuit.
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

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)

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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
warrant relief.

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

Gonzalez v. Crosby, 545 U.S. 524, 530-32(2005)).
If the motion does not contain a “claim,” it is a
proper Rule 60(b) motion.

Examples of proper Rule 60(b) motions

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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.
Motta’s purported Rule 60(b) motion is clearly a
“second or successive” § 2255 motion.

In his first § 2255

motion, he contended that he had newly discovered evidence.

In

the pending motion, he once again relies on what he describes as
new evidence.

What he calls a Rule 60(b) motion is not actually

seeking reconsideration of this court’s earlier ruling that his
first § 2255 motion was untimely.

Instead, he is trying to

reargue the content of that untimely motion.

That takes his

present motion outside the scope of Rule 60(b).

See Gonzalez,

545 U.S. at 531 (deeming habeas petition not to be second or
successive petition because it challenged only prior statute of
limitations ruling).

In any event, Motta cannot challenge this

court’s timeliness order given the Ninth Circuit’s ruling denying
him a certificate of appealability as to the timeliness order.
In Washington, the Ninth Circuit made it clear 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, Motta’s Rule 60(b) motion

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must be deemed a “second or successive” § 2255 motion for which
Motta must get § 2255(h) certification before proceeding in this
court.

The “claim” Motta asserts renders what he calls a Rule

60(b) motion actually a § 2255 motion.

In fact, § 2255(h)

specifically refers to a second or successive motion based on
newly discovered evidence as requiring certification.
Motta argues that, because this court’s timeliness
order did not address the merits of his first § 2255 motion, his
present motion is the first that goes to the merits and so cannot
be a second or successive § 2255 motion.

This argument is

foreclosed by McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.
2009).

The Ninth Circuit said in McNabb, “We hold that the

dismissal of a habeas petition as untimely constitutes a
disposition on the merits and that a further petition challenging
the same conviction would be ‘second or successive’ for purposes
of 18 U.S.C. § 2244(b).”
Although McNabb was addressing a motion filed in
federal court under 28 U.S.C. § 2254 to challenge a state court
conviction, the reasoning appears applicable to § 2255 motions.
As the Ninth Circuit explained, “A disposition is ‘on the merits’
if the district court either considers and rejects the claims or
determines that the underlying claim will not be considered a by
federal court.”

Id.

See also id. at 1030 (“dismissal of a first

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habeas petition for untimeliness presents a ‘permanent and
incurable’ bar to federal review of the underlying claims”).
C.

The Court Refers Motta’s Second or Successive
§ 2255 Motion to the Ninth Circuit for § 2255
Certification Purposes.

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 Motta’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
purposes.
Because this referral removes Motta’s motion from this
court, this court denies as moot the Government’s motion to
dismiss Motta’s motion.
III.

CONCLUSION.
Motta’s Rule 60(b) motion must be treated as a “second

or successive” § 2255 motion.

This court therefore 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.

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The Clerk of Court is

also directed to terminate Motta’s motion as well as the
Government motion to dismiss and to close this case pending the
Ninth Circuit’s § 2255(h) certification decision.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 4, 2016.

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

United States of America v. Ethan Motta, CR. NO. 06-00080 SOM,
CIV. NO. 14-00090 SOM-BMK, ORDER REFERRING TO NINTH CIRCUIT
DEFENDANT ETHAN MOTTA’S SECOND OR SUCCESSIVE PETITION UNDER 28
U.S.C. § 2255, EXHIBIT A

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