Teaupa v. USA

Filing 7

ORDER (1) DENYING DEFENDANT-PETITIONER'S MOTION TO RELIEVE PETITIONER FROM FINAL JUDGMENT PURSUANT TO RULE 60(b), ECF NO. 160; AND (2) REFERRING MOTION TO NINTH CIRCUIT COURT OF APPEALS. CR 12-0 1128-JMS; CV 16-00385-JMS-KSC Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 12/20/2016. (afc) ORDER denying ECF (160) in 1:12-cr-01128-JMS and ECF 6 in 1:16-cv-00385-JMS-KSCCERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the 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.

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

Cr. No. 12-01128 JMS
Civ. No. 16-00385 JMS-KSC

Plaintiff-Respondent,
vs.
UIKI TEAUPA,
Defendant-Petitioner.

ORDER (1) DENYING
DEFENDANT-PETITIONER’S
MOTION TO RELIEVE
PETITIONER FROM FINAL
JUDGMENT PURSUANT TO
RULE 60(b), ECF NO. 160; AND
(2) REFERRING MOTION TO
NINTH CIRCUIT COURT OF
APPEALS

ORDER (1) DENYING DEFENDANT-PETITIONER’S MOTION TO
RELIEVE PETITIONER FROM FINAL JUDGMENT PURSUANT TO
RULE 60(b), ECF NO. 160; AND (2) REFERRING MOTION TO NINTH
CIRCUIT COURT OF APPEALS
I. BACKGROUND
On July 11, 2016, pro se Defendant-Petitioner Uiki Teaupa
(“Teaupa”) filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255 Motion”). ECF No. 145.1
Teaupa argued that he was provided constitutionally ineffective assistance when
his trial counsel failed: (1) to move pretrial to dismiss the Superseding Indictment;
(2) to object to the amount of methamphetamine attributed to Teaupa at

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All “ECF No.” references are to Cr. No. 12-01128 JMS.

sentencing; (3) to seek a two-level reduction for acceptance of responsibility at
sentencing; and (4) to appeal the government’s failure to file a motion at
sentencing for a downward departure based on substantial assistance. On
December 12, 2016, the court denied the § 2255 Motion and denied a certificate of
appealability. ECF No. 152. On June 12, 2017, the Ninth Circuit denied Teaupa’s
request for a certificate of appealability, finding that he failed to make a
“substantial showing of the denial of a constitutional right.” ECF No. 158. Then,
on August 2, 2017, the Ninth Circuit denied Teaupa’s motion for reconsideration
and rehearing en banc. ECF No. 159.
Teaupa now moves for relief pursuant to Federal Rule of Civil
Procedure 60(b) (“Rule 60(b) Motion”). ECF No. 160. He claims that this court
failed to afford him the opportunity to conduct discovery and that the court erred in
not holding an evidentiary hearing on his § 2255 Motion. Because the court
determines that Teaupa’s Rule 60(b) Motion raises “claims” on the merits (and not
a defect in the integrity of the § 2255 Motion proceedings), it must be construed as
a second or successive § 2255 petition. The court thus refers the Rule 60(b)
Motion to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).
II. ANALYSIS
Rule 60(b) provides that a district court may relieve a party from a
final judgment, order, or proceeding where the movant has shown one or more of
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the following: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered before
the court’s decision; (3) fraud, misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released or
discharged; or (6) any other reason justifying relief. A party seeking Rule 60(b)(6)
relief must show “‘extraordinary circumstances’ justifying the reopening of a final
judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v.
United States, 340 U.S. 193, 199 (1950)).
A Rule 60(b) motion, however, cannot be used to undermine the
limitations on the collateral attack of a federal conviction. A federally convicted
defendant is generally limited to a single § 2255 petition; a “second or successive”
§ 2255 petition may not be filed or considered without meeting “the exacting
standards of 28 U.S.C. § 2255(h).” United States v. Washington, 653 F.3d 1057,
1059 (9th Cir. 2011). 2 And “[b]ecause of the difficulty of meeting this standard,
petitioners often attempt to characterize their motions in a way that will avoid the

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Under this exacting standard, a second or successive petition cannot be considered by
the district court unless first certified by the 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.” 28 U.S.C.
§ 2255(h).
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strictures of § 2255(h),” including characterizing “their pleading as being a motion
under Rule 60(b) of the Federal Rules of Civil Procedure.” Id. at 1059.
In order to determine whether a motion brought under Rule 60(b) is a
second or successive § 2255 petition or a properly-brought Rule 60(b) motion,
courts examine the substance of the motion to see if it sets forth a “claim” (such
that it must be construed as a § 2255 petition) or raises a defect in the integrity of
the § 2255 proceeding (such that it is a proper Rule 60(b) motion). Gonzalez, 545
U.S. at 531-33.3 As an example, Gonzalez teaches that a Rule 60(b) motion sets
forth a claim “if it attacks the federal court’s previous resolution of a claim on the
merits[.]” Id. at 532. On the other hand, a properly-brought Rule 60(b) motion
includes one asserting a defect in the integrity of the § 2255 proceeding. Id.
And in the Ninth Circuit, a Rule 60(b) motion asserting that the
district court declined to hold an evidentiary hearing is considered a “claim” on the
merits of the § 2255 petition:
Similarly, [Defendant’s] argument that [the district court
judge] mishandled the § 2255 motion because he failed to
develop the record sufficiently, lacked familiarity with
the facts of the case, failed to make detailed rulings on
each of [Defendant’s] claims, and declined to conduct an
evidentiary hearing on [Defendant’s] actual innocence

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Although Gonzalez analyzed the interplay between Rule 60(b) and § 2254 proceedings,
Gonzalez applies equally to § 2255 proceedings. United States v. Buenrostro, 638 F.3d 720, 722
(9th Cir. 2011).
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claim, does not constitute an allegation of a defect in the
integrity of the proceedings; rather, such arguments are
merely asking “for a second chance to have the merits
determined favorably,” Gonzalez, 545 U.S. at 532 n. 5,
125 S. Ct. 2641, and are precisely the sort of attack on
“the federal court’s previous resolution of a claim on the
merits,” id. at 532, 125 S. Ct. 2641 (emphasis omitted),
that Gonzalez characterized as a “claim” which is outside
the scope of Rule 60(b).
Washington, 653 F.3d at 1064. Many other courts agree. See, e.g., In re Lindsey,
582 F.3d 1173, 1175 (10th Cir. 2009) (finding that challenging the failure to hold
an evidentiary hearing is a claim on the merits); McCurdy v. United States, 2016
WL 1170970 (D. Maine Mar. 24, 2016); Robles-Garcia v. United States, 2014 WL
3534016 (N.D. Iowa July 16, 2014); Blackwell v. United States, 2009 WL 3334895
(E.D. Mo. Oct. 14, 2009).
Here, the decision to rule on Teaupa’s § 2255 Motion without a
hearing was a merits-based decision. In its December 12, 2106 Order, this court
stated,
A court may dismiss a § 2255 motion if “it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief.” R. 4(b), Rules Governing Section
2255 Proceedings. A court need not hold an evidentiary
hearing if the allegations are “palpably incredible [or]
patently frivolous,” Blackledge v. Allison, 431 U.S. 63,
76 (1977), or if the issues can be conclusively decided on
the basis of the evidence in the record. See United States
v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting
that a “district court has discretion to deny an evidentiary
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hearing on a § 2255 claim where the files and records
conclusively show that the movant is not entitled to
relief”). Conclusory statements in a § 2255 motion are
insufficient to require a hearing. United States v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993). A petitioner
must “allege specific facts which, if true, would entitle
him to relief.” United States v. Rodrigues, 347 F.3d 818,
824 (9th Cir. 2003) (internal quotation marks and citation
omitted).
Because the court concludes that the issues in
Teaupa’s § 2255 Motion can conclusively be decided on
the basis of the existing record, the court will not hold an
evidentiary hearing.
ECF No. 152 at 6-7; United States v. Teaupa, 2016 WL 7190514, at *2-3 (D. Haw.
Dec. 12, 2016).
As this language makes clear, this court’s decision not to hold an
evidentiary hearing was based on the evidence — that is, it was merits-based
because the record before the court showed that Teaupa was not entitled to relief.
Put differently, because his claim was so lacking in merit, Teaupa was not entitled
to an evidentiary hearing. And as stated in Lindsey, “there could be no error in
denying an evidentiary hearing unless the district court made an incorrect merits
determination.” 582 F.3d at 1176. Thus, Teaupa’s Rule 60(b) attack on the court’s
failure to hold an evidentiary hearing on his § 2255 Motion raises a “claim” on the
merits and is construed as a second and successive petition.

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Teaupa’s claim that the court denied him his “procedural right to
discovery” fares no better. Rule 60(b) Motion at 2. First, there is no right — at
least an automatic one — for discovery in a § 2255 proceeding. Under Rule 6 of
the Rules Governing Section 2255 Proceedings for the United States District
Courts, a judge may authorize discovery for “good cause.” And a party requesting
discovery must provide reasons for the request. Id. Thus, discovery is available in
a § 2255 proceeding only in the discretion of the court upon a showing of good
cause.
Moreover, Teaupa never requested any discovery. Without having
made the request, there was simply no reason for the court to grant Teaupa the
right to conduct discovery. As such, this allegation is akin to a claim on the merits,
and not one asserting a defect in the integrity of the § 2255 proceeding. It, too, is
construed as a second or successive § 2255 petition.
III. CONCLUSION
Teaupa’s Rule 60(b) Motion raises “claims” on the merits of his
§ 2255 Motion, and is thus properly construed as a second or successive § 2255
petition.
Ninth Circuit Rule 22-3(a) provides that 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
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to the court of appeals.” Having construed Teaupa’s Rule 60(b) motion as a
second or successive § 2255 petition, the court refers the matter to the Ninth
Circuit pursuant to Rule 22-3(a).
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, December 20, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

United States v. Teaupa, Cr. No. 12-01128 JMS, Civ. No. 16-00385 JMS-KSC, Order
(1) Denying Defendant-Petitioner’s Motion to Relieve Petitioner From Final Judgment Pursuant
To Rule 60(b), ECF No. 160; and (2) Referring Motion to Ninth Circuit Court of Appeals

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