Saltzer v. USA

Filing 29

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that Mr. Saltzers Rule 60(b) Motion (Civ. Dkt. 23 ) is DISMISSED. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARK ALAN SALTZER,
Case No. 1:14-cv-00451-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Pending before the Court is Mark Alan Saltzer’s Motion for Relief (Civ. Dkt. 23)
from the Court’s December 8, 2015 Memorandum Decision and Order (Civ. Dkt. 14;
Crim. Dkt. 53) and Judgment (Civ. Dkt. 16; Crim. Dkt. 54) pursuant to Fed. R. Civ. P.
60(b)(6). For the reasons discussed below, the Court will dismiss the motion for lack of
jurisdiction.
BACKGROUND
In August of 2012, Mr. Saltzer was arrested and charged in state court with ten
counts of Sexual Exploitation of Children—each of which carried a maximum
punishment of thirty years in prison. Dec. 8, 2015 Mem. Decision and Order at 1, Civ.
Dkt. 14. Mr. Saltzer’s lawyer, Charles Peterson, negotiated a deal on Saltzer’s behalf
whereby Mr. Saltzer would cooperate fully with federal investigators, and plead guilty to
the federal charges. Id. at 2. In exchange, the state charges were dismissed. Id. On July

MEMORANDUM DECISION AND ORDER - 1

30, 2013, pursuant to a Rule 11(c)(l)(B) plea agreement, Mr. Saltzer pleaded guilty to an
Information that charged him with one count of Sexual Exploitation of Children, in
violation of 18 U.S.C. § 2251(a). Id. On November 12, 2013, Mr. Saltzer was sentenced
by the Court to 348 months’ incarceration, based on a guideline range of 324–360
months, followed by 20 years of supervised release. Id. at 3.
Mr. Saltzer did not file an appeal from the sentence, but instead, on October 23,
2014, brought a 28 U.S.C. § 2255 motion to vacate his sentence based upon a claim of
eight grounds of ineffective assistance of counsel. Id. (see Civ. Dkt. 1 and Crim. Dkt. 49).
On December 8, 2015, this Court denied Mr. Saltzer’s § 2255 motion and declined to
issue a certificate of appealability. Id. at 28; see also Dec. 16, 2015 Judgment, Civ. Dkt.
16. Mr. Saltzer then sought a certificate of appealability from the Ninth Circuit, which
was denied, and then a writ of certiorari from the Supreme Court, which was also denied
(Civ. Dkts. 20 and 22).
On March 20, 2017, Mr. Saltzer filed the instant motion seeking relief from this
Court’s December 8, 2015 decision (Civ. Dkt. 23). Mr. Saltzer argues that the Court
should revisit its sentencing decision because a newly discovered email shows that both
the prosecutor and Mr. Peterson incorrectly analyzed his sentencing exposure at the plea
stage. Petitioner’s Br. at 1, Dkt. 23. This incorrect analysis, according to Mr. Saltzer, led
Mr. Peterson to advise Mr. Saltzer to reject the initial joint stipulated plea agreement of

MEMORANDUM DECISION AND ORDER - 2

293 months in favor of a nonbinding plea deal. 1 Id. at 3. Mr. Peterson allegedly reasoned
that this would “provide [the] Court greater flexibility in light of Defendant’s substantial
assistance,” and “informed [Mr. Saltzer] that because of the 5k1.1 reduction, he would
not face a sentence greater than [293 months], and he could in fact receive a sentence
closer to the 180-month minimum under § 2251(a).” Id. As a result, Mr. Saltzer was
surprised when the prosecution sought “the statutory maximum of 360 months,” and
when he ultimately received a sentence five years longer than the length of the sentence
he would have received if he had accepted the stipulated plea agreement. Id. at 3-4.
In support of his motion, Mr. Saltzer points to an April 4, 2013 email from the
prosecutor, AUSA Jim Peters, to Mr. Peterson, which Mr. Saltzer obtained from Mr.
Peterson on August 17, 2016, while he was in the course of preparing for his petition to
the Supreme Court. Id. at 4. The email states, in full:
Chuck – I ran an estimate of the guidelines form [sic] Mark Saltzer and
found myself at Level 47. Of course, there is no Level 47, so I reached out
to a probation officer in Pocatello – one who won’t be writing Saltzer’s
PSR – and asked him how they would handle a hypothetical situation like
his. You can see my message and his response below. 2

1

Mr. Peterson stated in his Jan. 28, 2015 affidavit, submitted as part of the government’s
response to Mr. Saltzer’s original § 2255 motion (see Civ. Dkt. 9-1), that he “advised Mr. Saltzer that if
he rejected the proposed limitation, the United States would argue for the maximum sentence of thirty
(30) years,” but that Mr. Saltzer “rejected the offer because he wanted the opportunity to ask for less than
twenty (20) years” and “reasoned that the Court would look upon his years of service to the community
and sentence him to less than the proposed joint sentencing recommendation.” Petitioner’s Br. Appendix
P.10 ¶ 29, Dkt. 23. Mr. Peterson “disagreed and told [Mr. Saltzer] so, but [Mr. Saltzer] willingly accepted
the risk of a thirty (30) year sentence.” Id.
2
These were also included in Mr. Peterson’s email to Mr. Saltzer.

MEMORANDUM DECISION AND ORDER - 3

Based on that response, I think Saltzer will start at Level 43 – which would
be Life.
If he pleads guilty, he’d be credited for acceptance of responsibility, and
that would reduce it to Level 40, which would be 292-365 months. Then,
take off one level for cooperation 3 (he hasn’t given them anything that
resulted in the prosecution of others, but he did identify some victims they
didn’t know about) and his range is 262-327 or roughly 21.8 to 27.25 years.
I think a sentence roughly in the middle of that range, say 25 years, would
be appropriate under these circumstances. He’d probably get credit for the
time he has served in state custody, and so with good time could be out in
about 20.
Hoping to talk with you about this tomorrow, and see if we can get this put
away so Ada County doesn’t have to prep for trial.
And FYI, this is just an “invitation to treat” as they say in law school. Final
deal will be in a written plea agreement, and have to be approved by Aaron.
Id.; Appendix at 1-2, Civ. Dkt. 23-1. However, Mr. Saltzer states that “basic research”
would have shown that the correct starting level was 47, not 43. 4 Id. at 5. Ultimately,
“Defendant’s sentencing exposure under the Guidelines was miscalculated by AUSA
Peters, and counsel relied on this miscalculated range when advising Defendant to reject
the offered binding plea at the high end of that range.” Id. at 5-6. According to Mr.

3

The government ultimately recommended a two-level downward departure. See Petitioner’s Br.
at 3, Dkt. 23; Gov. Resp. at 4-5, Dkt. 24.
4
The government concedes that the AUSA’s explanation “turned out to be inaccurate,”
explaining that “[i]n the Presentence Investigation Report, the Probation Officer subtracted three levels
from an offense level of 52, and the guidelines range was determined based on the maximum offense
level in the sentencing table: 43.” Gov. Resp. at 4-5, Dkt. 24. However, the government argues that the
AUSA’s email is nonetheless “consistent with the stipulated plea agreement that [Mr. Saltzer] rejected”
because the proposed agreement “called for a joint recommendation of 293 months (24 years and 5
months)” and the AUSA reached a similar figure in his email: “I think a sentence roughly in the middle of
that range, say 25 years, would be appropriate . . . .” Id. at 5.

MEMORANDUM DECISION AND ORDER - 4

Saltzer, this email also refutes Mr. Peterson’s claim that he advised Mr. Saltzer to accept
the joint sentencing recommendation. Id. at 4. Finally, Mr. Saltzer argues that because
this email was not previously available to the Court, and because Mr. Peterson’s affidavit
to the Court was “incomplete,” “extraordinary circumstances” caused a defect in the
integrity of the proceedings and justify relief under FRCP 60(b)(6). Id. at 7.
The government argues that this Court lacks jurisdiction because Mr. Saltzer’s
motion is not a legitimate Rule 60(b) motion, but rather a “disguised second or successive
motion under § 2255.” Gov. Resp. at 2, Dkt. 24. It also contends that even if the Court
had jurisdiction, the newly discovered email does not provide a basis for disturbing the
Court’s prior ruling under Rule 60(b). Id. at 3. Finally, the government claims that Mr.
Saltzer’s motion is untimely under both § 2255 and Rule 60(b). Id.
LEGAL STANDARD
Federal prisoners claiming the right to be released on the grounds that their
sentence violates the Constitution or laws of the United States may file a motion under 28
U.S.C. § 2255. “As a general rule, § 2255 provides the exclusive procedural mechanism
by which a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519
F.3d 952, 955 (9th Cir. 2008). If the district court denies the relief sought in the § 2255
motion, the prisoner may not appeal that denial without first obtaining a certificate of
appealability under 28 U.S.C. § 2253(c)(1)(B). To obtain this certificate, the prisoner
must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2), (3).

MEMORANDUM DECISION AND ORDER - 5

Additionally, prisoners are generally limited to one motion under § 2255, and may
not bring a “second or successive motion” unless it meets the exacting standards of 28
U.S.C. § 2255(h). Section 2255(h) provides that such a motion cannot be considered
unless it has first been certified by the court of appeals to contain either “(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.” Id. § 2255(h). Federal Rule of Civil Procedure 60(b) allows a
party to seek relief from a final judgment, and request reopening of his case under a
limited set of circumstances including fraud, mistake, and newly discovered evidence.
Fed. R. Civ. P. 60(b). Subsection (b)(6) permits reopening when the movant shows “any .
. . reason justifying relief from the operation of the judgment” other than the more
specific circumstances set out in Rules 60(b)(1)-(5). Id. 60(b)(6).
When faced with a motion under Rule 60(b), district courts are tasked with
ascertaining whether the motion is a “true” Rule 60(b) motion, or whether it is a
disguised second or successive § 2255 motion. See Washington, 653 F.3d at 1059-60.
Although the Supreme Court has not established a bright-line rule for spotting true Rule
60(b)(6) motions, it has held that a motion attacking some defect in the integrity of the
habeas proceedings qualifies. See id. (discussing Gonazlez, 545 U.S. 524, 523 (2005)).
Such defects may include “fraud on the habeas court” and allegations that a previous

MEMORANDUM DECISION AND ORDER - 6

ruling precluding a merits determination, such as denial for failure to exhaust, procedural
default, or a statute-of-limitations bar, was in error. Jones v. Ryan, 733 F.3d 825, 834 (9th
Cir. 2013) (citing Gonazlez, 545 U.S. at 532 nn. 4-5 (2005)). On the other hand, if a
motion presents one or more “claims,” “in effect ask[ing] for a second chance to have the
merits determined favorably,” it is properly construed as a second or successive § 2255
motion, not a Rule 60(b) motion. Id. at 835.
Rule 60(b)(6) should be used “sparingly as an equitable remedy to prevent
manifest injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir. 1993). Accordingly, the Rule allows relief only when a party can establish that
“extraordinary circumstances prevented [it] from taking timely action to prevent or
correct an erroneous judgment.” United States v. Washington, 394 F.3d 1152, 1157 (9th
Cir. 2005). Specifically, the party must demonstrate both injury and circumstances
beyond his control that prevented him from proceeding with . . . the action in a proper
fashion.” Id.
ANALYSIS
1.

Second or Successive § 2255 Motion
For the reasons set forth below, Mr. Saltzer’s motion constitutes a successive or

second § 2255 petition. Mr. Saltzer concedes that he is “not claiming actual innocence or
a change of law applicable to a second § 2255 [petition].” Petitioner’s Br. at 8, Dkt. 23.
Therefore, the Court lacks jurisdiction over Mr. Saltzer’s motion and must deny it.

MEMORANDUM DECISION AND ORDER - 7

First, Mr. Saltzer fails to “point to something that happened during the proceeding
that rendered its outcome suspect,” as required to show a “defect in the integrity” of his
first § 2255 proceeding. United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011).
Mr. Saltzer makes much of the fact that the Court did not know of the newly discovered
email at the time it decided his § 2255 claim. See, e.g., Petitioner’s Br. at 8, Dkt. 23
(“Habeas counsel’s failure to discover the emails precluded use of this information during
the habeas proceedings.”); Petitioner’s Reply at 8-9, Dkt. 27 (“the habeas Court never
had an opportunity to consider how counsel’s misunderstanding caused injury to the
Defendant by erroneously advising [him] to reject the first plea agreement”). However,
he does not explain how this lack of knowledge rendered the Court’s decision suspect. In
fact, Mr. Saltzer concedes that “the final outcome on Claim 3 5 would be the same,
regardless of the new information,” and “on its own, this new information does not rise to
the ‘magnitude that production of it earlier would change the disposition of the case’
under the meaning of Rule 60(b)(2).” Petitioner’s Reply at 3, Civ. Dkt. 27; Gov. Br. at 89, Civ. Dkt. 23.

5

“Claim 3” refers to the third ground for Mr. Saltzer’s claim of ineffective assistance of counsel:
failure to object to the government’s breach of the plea agreement. Motion to Vacate Sentence Pursuant
to 28 U.S.C. § 2255 at 5, Civ. Dkt. 1. Mr. Saltzer referenced two of the grounds for ineffective assistance
of counsel in his briefs in support of his Rule 60(b) motion: the third ground and the sixth ground (failing
to argue that the guidelines sentences were longer than necessary to achieve a just sentence). Id. at 8; see
also Petitioner’s Reply at 2, 8, Civ. Dkt. 27.

MEMORANDUM DECISION AND ORDER - 8

Rather, Mr. Saltzer relies on a series of largely unsupported assumptions linking
the email to the Court’s decision: that Mr. Peterson accepted the email’s calculation of
the starting level as accurate without conducting research to verify it, 6 that it was the
reason why he advised Mr. Saltzer to reject the initial plea offer, that Mr. Saltzer would
have accepted the initial plea offer if he or Mr. Peterson had known of the correct starting
level, and that the Court would have granted Mr. Saltzer’s § 2255 motion if it had known
of its effect on Mr. Peterson’s advice and Mr. Saltzer’s decision regarding the initial plea
offer. Thus, even accepting Mr. Saltzer’s version of disputed facts, 7 he has not satisfied
his burden of showing that the outcome of the § 2255 proceeding would have been
different had the Court known of the newly discovered email at the time it made its
decision.
Second, Mr. Saltzer’s claim does not match any of the examples of “defect[s] in
the integrity of the federal habeas proceedings” recognized in Gonzales. Mr. Saltzer does
not allege that the Court erroneously issued a ruling that precluded a merits
determination. While he does claim that Mr. Peterson’s failure to mention the newly
discovered email in his affidavit constitutes fraud upon the Court, see Petitioner’s Br. at

6

Mr. Saltzer claims that Mr. Peterson did not reply to the email with a correction, which “is
evidence that he too believed the AOR is always taken from 43, regardless of whether any proposed
agreement was a joint stipulated one or not.” Petitioner’s Reply at 6, Dkt. 27.
7
These include whether Mr. Peterson advised Mr. Saltzer to accept the initial plea offer (see
Footnote 1, above) and whether the reason that Mr. Saltzer declined the initial plea offer because he
wanted to seek a sentence of no longer than twenty years. Compare Gov. Resp. at 11, Civ. Dkt. 24 (citing
Mr. Peterson’s statement in his affidavit that Mr. Saltzer rejected the initial plea offer “because he wanted
the opportunity to ask for less than twenty (20) years”) with Petitioner’s Reply at 7, Civ. Dkt. 27 (stating
that his “total offense level was so high, he was obviously precluded from a sentence under 20 years”).

MEMORANDUM DECISION AND ORDER - 9

8, Civ. Dkt. 23 (“the incomplete statements by counsel on his affidavit . . . represent an
element of fraud on the Court”), Mr. Saltzer fails to show that this omission was made
intentionally and in bad faith. See United States v. Buenrostro, 638 F.3d 720, 722 (9th
Cir. 2011) (“We have explained that ‘[f]raud on the court must involve an
unconscionable plan or scheme which is designed to improperly influence the court in its
decision.’”) (citing Gumport v. China Int'l Trust & Inv. Corp. (In re Intermagnetics Am.,
Inc.), 926 F.2d 912, 916 (9th Cir. 1991)). Furthermore, “an attack based on . . . habeas
counsel's omissions . . . ordinarily does not go to the integrity of the proceedings, but in
effect asks for a second chance to have the merits determined favorably.” Gonzalez, 545
U.S. at 532.
Third, and finally, Mr. Saltzer fails to show how lack of knowledge about the
email undercuts the integrity of the prior proceeding with regard to any of the claims he
raised there. See Jones v. Ryan, 733 F.3d at 836 (“[T]he rule announced in Gonzalez, that
a valid Rule 60(b) motion ‘attacks . . . some defect in the integrity of the federal habeas
proceedings,’ . . . must be understood in context generally to mean the integrity of the
prior proceeding with regard to the claims that were actually asserted in that
proceeding.”) (emphasis added). Here, Mr. Salzter references two of the grounds for
ineffective assistance of counsel that he raised in the § 2255 proceeding (see Footnote 5,
above), but Mr. Saltzer provides no explanation for how the newly discovered email

MEMORANDUM DECISION AND ORDER - 10

shows that the integrity of the decision-making process to resolve them was undermined. 8
It is unlikely that he could do so, given that, as the government points out, neither of
those claims were related to plea negotiations or calculations of the sentencing guidelines
range. For that reason, the newly discovered email is not a true attack on the integrity of
the proceeding in which that claim was denied. Rather, it is more like “newly discovered
evidence” in support of his previously denied ineffective assistance of counsel claim, and
effectively asks for a “second chance” to have the merits on that claim decided in his
favor. Therefore, Mr. Saltzer’s motion is outside the scope of Rule 60(b), and must be
dismissed for lack of jurisdiction. 9
2.

Rule 60(b)(6) Motion
However, even if this Court had jurisdiction, it would deny Mr. Saltzer’s motion

because the newly discovered emails do not constitute “extraordinary circumstances”
justifying relief under Rule 60(b)(6). Mr. Saltzer has not demonstrated “injury” as
required to prevail under Rule 60(b)(6) because, as explained above, he has not shown
that the outcome would have been different if the Court had known of the newly
discovered email when it decided his § 2255 claim.

8

Mr. Saltzer states in a footnote that he raised the issue of Mr. Peterson’s alleged
misunderstanding and faulty advice in his habeas motion. See Petitioner’s Br. at 4 n.1, Civ. Dkt. 23.
However, he provided no citation, and the Court did not find such a discussion in his brief in support of
his § 2255 motion. See Civ. Dkt. 23; Crim. Dkt. 49.
9
Because the Court dismisses Mr. Saltzer’s claim on this basis, it need not address the
government’s timeliness arguments.

MEMORANDUM DECISION AND ORDER - 11

Furthermore, even accepting Mr. Saltzer’s version of the facts as true, he has not
shown that his attorney’s conduct approached the level of negligence by attorneys that
courts have found to constitute “extraordinary circumstances.” The Court has already
explained that Mr. Peterson’s alleged conduct did not rise to the level of “fraud upon the
Court.” Another accepted basis for Rule 60(b)(6) motions is gross negligence by a
petitioner’s attorney, defined as “neglect so gross that it is inexcusable.” Lal v.
California, 610 F.3d 518, 524 (9th Cir. 2010). Courts have held that such neglect
occurred, for example, where an attorney “virtually abandoned his client by failing to
proceed with his client's defense despite court orders to do so.” Cmty. Dental Servs. v.
Tani, 282 F.3d 1164, 1170 (9th Cir. 2002), as amended on denial of reh'g and reh'g en
banc (Apr. 24, 2002). Similarly, an attorney was found to have committed gross
negligence where he “deliberately misled” his client by, among other things, telling her
that her case was moving forward even after it had been dismissed. Lal, 610 F.3d at 524
(9th Cir. 2010).
Here, Mr. Saltzer does not allege that Mr. Peterson “abandoned” him, and does not
alleged that Mr. Peterson’s reliance on the email and erroneous advice was anything other
than a mistake. He alleges that Mr. Peterson’s decision not to reference the email in his
affidavit was misleading, but as explained above, that omission did not affect the
outcome of the proceedings because Mr. Saltzer made no claim related to the plea
negotiations of Mr. Peterson’s calculation of the sentencing range. Thus, even if the
Court has jurisdiction to decide Mr. Saltzer’s Rule 60(b)(6) motion, it would deny it on

MEMORANDUM DECISION AND ORDER - 12

the grounds that Mr. Saltzer has not demonstrated “extraordinary circumstances.”
Accordingly,
ORDER
IT IS ORDERED that Mr. Saltzer’s Rule 60(b) Motion (Civ. Dkt. 23) is DISMISSED.

DATED: August 15, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 13