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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Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 1 of 6 19098 PageID #: 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- ) ) ) ) ) ) ) ) ) ) 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 l · ~ ~ " • ~ m1 : ~.':!1!0." · ~ __ 0 · l()x ·~ : t 1 i .Jo ~11't~r-<:,,/- to .~~ .dJc~r .. (! /lk-. ·· ~ ~f -. ~ "r;Jd_.S~JJ~ EXHIBIT "A" Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 2 of 6 19099 PageID #: 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 -2- Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 3 of 6 19100 PageID #: 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"). -3- Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 4 of 6 19101 PageID #: 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). -4- Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 5 of 6 19102 PageID #: 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: -5- Isl Ethan Motta Ethan Motta No. 95609-022 USP Lee P.O. Box 305 Jonesville, VA 24263 Case 1:06-cr-00080-SOM-BMK Document 1703 Filed 06/15/16 Page 6 of 6 19103 PageID #: 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 -6-

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