Swisher v. USA

Filing 26

MEMORANDUM DECISION AND ORDER denying 23 Motion for Reconsideration. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

Case No. 1:09-CV-55-BLW
1:07-CR-182-BLW
MEMORANDUM DECISION AND
ORDER

ELVEN JOE SWISHER,
Defendant-Movant.

Pending before the Court is Elven Joe Swisher’s (“Swisher”) Motion for
Reconsideration (Dkt. 23) of the Memorandum Decision and Order (Dkt. 21) dismissing
his § 2255 Motion and Renewed § 2255 Motion (collectively, “§ 2255 Motion”). For the
reasons set forth below, the Court enters the following Order denying the Motion for
Reconsideration.
BACKGROUND
Swisher was charged with and convicted following a jury trial of one count of
wearing various unauthorized military medals; two counts of making false statements to
the Veterans Administration (“VA”) supported by a forged, counterfeit or falsely altered
certificate of discharge from the United States Marine Corps; and one count of theft of
government funds by effectively stealing disability benefits for Post Traumatic Stress

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Disorder (“PTSD”) from the VA based on those false statements.1 The Ninth Circuit
affirmed his convictions.
Swisher subsequently filed a § 2255 Motion (Dkt. 1) alleging several claims of
ineffective assistance of counsel, many of which were based on a perceived conflict of
interest arising out of defense counsel’s prior representation of an individual against
whom Swisher had testified in a murder-for-hire case. One of his claims of ineffective
assistance of counsel was failure to engage in adequate discovery and to subpoena
military and hospital records. Swisher also filed a Renewed § 2255 Motion (Dkt. 18)
during the pendency of the § 2255 Motion. The Renewed Motion incorporated all of the
grounds in the original § 2255 Motion and asserted as newly discovered facts (1) the
decision in United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010), reh’g denied, 638
F.3d 666 (9th Cir. 2011), which found the Stolen Valor Act facially invalid, and (2) a new
Department of Veterans Affairs regulation regarding PTSD claims.
The Court denied the § 2255 Motion and Renewed § 2255 Motion in its entirety
and issued a certificate of appealability on the sole issue of whether Alvarez warrants
addressing Swisher’s claim regarding his conviction under the Stolen Valor Act. Within
ten days of entry of the Judgment (Dkt. 22) dismissing the § 2255 Motion, Swisher filed
the pending Motion for Reconsideration. In the Motion, Swisher “directs the Court’s
attention to several facts that may have been previously overlooked.” The Motion is
1

The Court extensively discussed the background of this case and the trial in its Order Denying
Discovery (Dkt. 17) and its Memorandum Decision and Order (Dkt. 23) dismissing Swisher’s § 2255
Motion and will not repeat that background here.
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supported by materials that he has obtained from various sources which he argues
demonstrates that proper discovery would have supported his claims of valor. He seeks
either an evidentiary hearing or a certificate of appealability on all issues raised in the
§ 2255 Motion.
LEGAL STANDARD
Swisher’s Motion does not indicate whether it is brought pursuant to Fed. R. Civ.
P.59(e) or Fed. R. Civ. P. 60(b). A Rule 59(e) motion to alter or amend a judgment under
must be filed no later than 28 days after entry of judgment whereas a Rule 60(b) motion
for relief from a judgment or order must be filed either within a year or within a
reasonable time depending on the ground asserted. Because Swisher’s Motion was filed
within the 28-day time-frame, the Court may construe it as having been brought under
either rule.
A court has “considerable discretion” in ruling on a Rule 59(e) motion since
specific grounds for a motion to amend or alter a judgment are not listed in the rule. See
McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc) (per curiam).
However, amending a judgment is “an extraordinary remedy which should be used
sparingly.” Id. (citation omitted).
“In general, there are four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest errors of law or fact upon
which the judgment rests; (2) if such motion is necessary to present newly discovered or
previously unavailable evidence; (3) if such motion is necessary to prevent manifest
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injustice; or (4) if the amendment is justified by an intervening change in controlling
law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell,
id.).
Unlike Rule 59(e), Rule 60(b) lists several grounds upon which the court may
grant relief:
(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); (3) fraud . . ., misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or
otherwise vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Rule 60(b), like Rule 59(e), should be used “sparingly as an equitable remedy to
prevent manifest injustice” and only in “extraordinary circumstances.” Lal v. California,
610 F.3d 518, 524 (9th Cir. 2010) (citing United States v. Alpine Lane & Reservoir Co.,
984 F.2d 1047, 1049 (9th Cir. 1993)). Furthermore, when a Rule 60(b) motion seeks to
add a new ground for relief or attacks the resolution on the merits of the underlying
habeas decision, the motion to reconsider is effectively a second or successive habeas
petition. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (distinguishing Rule 60(b)
motions alleging a defect in the integrity of the § 2254 habeas proceeding from asserting
that a previous ruling precluding a merits determination was in error).
ANALYSIS
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The gist of Swisher's Motion to Reconsider is that if counsel had subpoenaed
military and hospital records rather than relying on the Government's production of what
it characterized as his entire military file and/or if he had been allowed to testify, he may
have been acquitted. He cites trial testimony with which he disagrees, offers examples of
individuals being denied recognition or benefits during other periods of military conflict,
offers guidelines for reconstructing a service record destroyed in a fire (although Marine
Corps records of his era were not destroyed in a fire), and offers further support for his
belief that the mission in which he allegedly participated has been covered up.
Precluding relief under Rule 59(e) is the lack of any manifest error of law or fact,
any newly discovered or previously unavailable evidence, any manifest injustice, or any
intervening change in controlling law. While Swisher may disagree with some of the
statements or findings of the Court, they do not constitute a manifest error or manifest
injustice sufficient to undermine the Court’s decision.
Precluding relief under Rule 60(b) is Swisher's similar failure to meet any of the
grounds cited in that Rule. Rather, he reasserts prior arguments and alleges that the
Court's ruling was in error. As such, it is considered a second or successive § 2255
motion and is barred absent permission from the Ninth Circuit Court of Appeals. Such
permission will be granted only when a movant presents “new evidence that could clearly
and convincingly prove his innocence” or “has the benefit of a new, retroactive rule of
constitutional law.” United States v. Buenrostro, 638 F.3d 720, 722-23 (9th Cir. 2011)
(joining three other circuits in extending Gonzalez v. Crosby to motions to reopen § 2255
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proceedings).
ORDER
IT IS ORDERED that Plaintiff’s Motion for Reconsideration (Dkt. 23) is
DENIED.

DATED: July 28, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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