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.

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FILED IN THE

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI'I
HONOLULU DIVISION

UNITED STATES DISTRrcr COURT
DISTRICT OF HAWAII

JU 15 2016
at l~oekand.3 ~n I° M.~
SUE SEITIA. CLERK-

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UNITED STATES OF AMERICA,
Respondent - Plaintiff,
v.
ETHAN MOTTA,
Petitioner - Defendant.

USDC Case No. 1:14-cv-090-SOM
USDC Case No. 1:06-q-080-SOM-5
Hon. Susan Oki Mollway
United States District Court Judge

PETITIONER'S PRO SE MOTION FOR RELIEF FROM JUDGMENT
OR ORDER PURSUANT TO RULE 60(b)(l), (2) & (6)
FEDERAL RULES OF CIVIL PROCEDURE
COMES NOW ETHAN MOTTA, Petitioner prose in the above styled and numbered cause
and respectfully moves before this Court for entry of an Order, granting the relief requested in all
respects.
IN SUPPORT THEREOF, Petitioner would show the Court the following facts,
circumstances and points of law:

I.
A.

RELEVANT PRELIMINARY STATEMENT
For the sake of brevity, Petitioner ("Motta") will summarize the procedural history ofhis case

and relevant considerations leading to the instant motion: In 2006 a grand jury returned an indictment
chargingMottawithRacketeering(RICO)andmurder(V ICAR)relatedcharges.Mottainitiallytried
to accept responsibility, however, this Court could not accept the stipulated sentence as 18 U.S.C.
§1959(a)(l) carries a mandatory life sentence. (DE#. 886 - Change of Plea Hearing). Trial on the

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EXHIBIT "A"

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merits ensued with Motta being convicted and sentenced to Life imprisonment.
Motta' s conviction and sentence were affirmed by the Ninth Circuit on direct appeal. (See,
USCA Case No. 09-10499). Motta filed a certiorari petition with the Supreme Court, which denied
on February 19, 2013. (See, SCOTUS Case NO. 12-5496). Motta then submitted a Motion to Vacate
via the provisions of 28 U.S.C .. §2255. The petition was filed, by this Court's findings, at "the
earliest" on February 21, 2014. (DE#. 1665 - Order Dismissing §2255 Petition). That the petition
was filed out-of-time is not in dispute. (Id at 7).
Because this Court found that petition was untimely, the central issue was whether equitable
tolling should apply. Motta argued that tolling was appropriate as he originally drafted his §2255 on
a word processor made available by the institution, and that during the week of his deadline the
printer accompanying the word processor was out of order. Petitioner therefore, was unable to
produce a final version of the petition due to this impediment. (DE# 1665, 6).
In April and May of 2015, this Court held a continuous hearing where evidence was
presented on the issue. Some of the evidence presented was contradictory and the Court was doubtful
of the credibility of certain aspects of the testimony presented. (Id. 31 ). However, the main point
remained uncontested; i.e., that the printer was unavailable during the entire week ofF ebruary 16-23,
2014. (Id., 5-6). In its Memorandum Opinion and Order, this Court declined to toll the statute of
limitations for two reasons. First, the Court found that Petitioner did not act reasonably diligent
because he did not clarify the deadline after being told that his 225 5 petition was due sometime
around Valentine's Day. (Id. 36). The Court added that though Petitioner had "something" he could
have mailed on February 19, 2014, he did not. The Court finished by noting that Petitioner was still

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adding things to his motion on February 20, 2014. (Id.). Second, The Court did not see any
extraordinary circumstance in the printer not being available as it discredited Petitioner's assertions
that he knew the deadline was February 19, and instead found Petitioner truly believed the deadline
was February 22, 2014. (Id., 37).The Court went on to note it had every intention of granting tolling
under the circumstances ofthis case based on (1) that the deadline was only missed by two days; (2)
Petitioner was sentenced to Life imprisonment, and (3) it was the last available remedy to correct
or vacate the sentence and conviction. Yet incomprehensibly the Court declined to do so based on
the facts presented. In sum, this Court held equitable tolling did not apply because it found Motta
did not show he was diligent or that some extraordinary circumstance stood in his way. After his
timely Notice of Appeal, a Certificate of Appealability ("COA") was denied by the Ninth Circuit and
dismissed on November 2, 2015. (See, USCA Case No. 15-16426).

B.

1

RULE 60(b), Fed. R. Civ. P.
The 2007 restyled Rule 60(b) provides six grounds for relief from a final judgment, order,

or proceeding. "On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons." Relevant here, are the

As a pro se petitioner incarcerated in federal prison and without the benefit of formal
training as an attorney, Motta is entitled to and contemporaneously invokes the full measure of the
liberal pleading and construance doctrine first fully expressed in Estelle v. Gamble, 429 U.S., 97
(1976). The doctrine obliges this Court to apply the law liberally and with a duty of construance
under any provision or practice which would be most beneficial for the relief being sought,
regardless of couching by the prose pleader. As a result of Motta' s prose status, the instant Motion
and Memorandum of Law must be held to less stringent standards than those drafted by attorneys.
Further, the allegations raised herein, must be taken as true and consequently construed in light most
favorable to his position in any issue not specifically rebutted or procedurally waived by Respondent
("government").
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following:
(1)

"mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);

(6)

any other reason that justifies relief."

II.

A.

PROCEDURAL ANALYSIS
As an initial matter, Motta submits that: following the Supreme Court's decision in Gonzalez

v. Crosby, 545 U.S. 524 (2005), as it relates to the filing, consideration and determination of Rule
60(b), Fed R. Civ. P. Motions, the instant action is properly before this Court attacking the integrity
of his federal habeas proceedings and seeks relief from the judgment of this Court as noted above
and argued in his Contemporaneous Memorandum of Law in Support filed herewith. He submits for
consideration as follows: Motta does not advance one or more predicate "claims" new or otherwise;
he does not seek to "add a new ground for relief' (except as may be applied substantively or under
60(b)(2)), and does not "attack any of this Court's previous resolutions" of any of his prior claims
which have been decided "on the merits". 2 Therefore the Motion is not an unauthorized attempt to
bypass the gate-keeping requirements of 28 U.S.C. §2244(a) or (b). Thus, Motta seeks to avail
himself of the procedural mechanism permitted via Rule 60(b), Fed. R. Civ. P. for relief from the
judgment of this Court as enunciated in each of the afore noted subsections and reopen that

2

The Crosby Court's "on the merits" definition informs: "[t]he term 'on the merits' has
multiple usages." Yet more correctly defined when a 60(b) motion attacks some defect in the
proceedings or when, as here the motion asserts that a previous ruling, which precluded a merits
determination was error.(Emphasis provided).

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judgment.

B.

PROCEDURAL CLAIMS AND DEFECTS
Motta attacks the defects in his original federal habeas proceeding decided before this Court

on June 16, 2015 (DE #4) and as fully set forth and described in his Contemporaneous Memorandum
of Law in Support filed herewith.

III.
Motta submits that each of the foregoing matters represent linusual and extreme
circumstances where principles of equity demand relief. It is respectfully advanced that life without
the possibility of parole is a harsh and extreme penalty. One that sets a course not only for
redemption but answers to questions that have previously gone unanswered and fairness
undiscovered as Motta has diligently pursued his available avenues for relief. Categorical denial of
the instant Motion without reaching the merits of his allegations would chill the judicial process and
work an injustice of monumental proportions upon Motta. In the interests of justice and finality,
Motta has properly challenged the integrity_of the initial habeas proceedings before this Court by
seeking to reopen his collateral attack by vacatur of this Court's judgment. It is respectfully
requested.
Dated: June 13, 2016

Respectfully submitted

By:

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Isl Ethan Motta
Ethan Motta
No. 95609-022
USP Lee
P.O. Box 305
Jonesville, VA 24263

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DECLARATION
I Ethan Motta, herein declare under penalty of perjury that I am the Petitioner prose in the
above stated matter and that the foregoing is true and correct based upon information and belief and
not willfully false. I make this declaration pursuant to 28 U.S.C. § 1746 this

13th

day of June, 2016.

Isl Ethan Motta

By:

Ethan Motta
Petitioner Pro Se

CERTIFICATE OF SERVICE
I herein certify that a true copy of the foregoing was sent via first class United States mail
with postage prepaid and affixed thereon this

13th

day of June, 2015 to: The Clerk ofthis Court (by

Express Mail), and the Office of the U.S. Attorney, Thomas J. Brady, AUSA at 300 Ala Moana
Blvd. Suite 6100, Honolulu, HI. 96850
By:

Isl Ethan Motta
Ethan Motta
Petitioner Pro Se

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