Mertens v. USA

Filing 40

MEMORANDUM ORDER denying 39 Motion for Rule 60(b) and any request for Certificate of Appealability. Signed by Judge Edward J. Lodge. (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

ROBERT LEON MERTENS
Petitioner,

Case No. 2:09-CV-00503-EJL
2:03-CR-00073-EJL
MEMORANDUM ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

Pending before the Court in the above-entitled matter is Petitioner’s Motion made
pursuant to Federal Rule of Civil Procedure 60(b) and all related sections. (Dkt. 39.)
Having fully reviewed the record herein, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, this Motion shall be decided
on the record before this Court without oral argument.
Discussion
Petitioner asks that this Court render its Judgments entered in his cases void because
of newly obtained evidence that supports his claims of 1) serious misconduct of evidence
tampering and fraud by the Government and 2) ineffective assistance of counsel. (Dkt. 39.)
Petitioner’s Motion is based on Rule 60(b), which states grounds for relief from a final
MEMORANDUM ORDER - 1

judgment including:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence...; (3) fraud...; (4) the judgment is void;...(6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b) (emphasis added).
To the extend the claim raised in this Motion seeks to reopen the § 2255 proceedings
as a new ground for relief, the Motion is treated as a § 2255 motion. See United States v.
Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011). Petitioner claims a violation of his Due
Process and Sixth Amendment rights; in particular his right to a fair trial and to hire counsel
of his choice. (Dkt. 39.) A “defect in the integrity of the federal habeas proceedings,” such
as “fraud on the habeas court,” might justify reopening § 2255 proceedings under Rule 60(b).
Gonzalez v. Crosby, 545 U.S. 524, 532 & n. 5 (2005). This case, however, is not one in
which Petitioner can or has demonstrated such a defect or that his is the rare case in which
extraordinary circumstances justify reopening the final order denying his § 2255 motion
pursuant to Rule 60(b)(6). See Buenrostro, 638 F.3d at 722-23. Petitioner’s claims and
arguments have been raised previously, considered, and denied. Further, there has been no
defect shown in the integrity of his first § 2255 proceeding. Id.
To the extent the Petitioner’s Motion seeks to bring a new claim for relief,
independent from those claims adjudicated in his first § 2255 case, the Court treats this Rule
60(b) Motion as a § 2255 Motion. Buenrostro, 638 F.3d at 723. As such, the Court must
consider whether Petitioner is allowed to file such a § 2255 motion. Id. Section 2255(h)
MEMORANDUM ORDER - 2

provides:
A second or successive motion must be certified ... by a panel of the
appropriate 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.
Here, there is no basis shown for allowing Petitioner to file this § 2255 petition. There is no
newly discovered evidence raised here going to show the Petitioner’s innocence nor any new
rule of constitutional law that is applicable. As such, the Motion is denied.
Further, the Court denies any request for a certificate of appealability. In order to
pursue any appeal from the denial or dismissal for writ of habeas corpus brought by a federal
prisoner under 28 U.S.C. § 2255, a petition/appellant must first obtain a certificate of
appealability. See 28 U.S.C. § 2253(c);1 Fed. R. App. P. 22(b).2 When the denial or dismissal

1

28 U.S.C. § 2253(c) provides, in pertinent part:
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from–
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
2

Fed. R. App. P. 22(b)(1) provides that “In a habeas corpus proceeding in which the detention
complained of arises out of process issued . . . in a 28 U.S.C. § 2255 proceeding, the applicant cannot take
an appeal unless a circuit justices or a circuit or district judge issues a certificate of appealability under 28
U.S.C. § 2253(c) . . .”
MEMORANDUM ORDER - 3

of a habeas corpus petition is based upon the merits of the claims in the petition, a district
court should issue a certificate of appealability only where the appeal presents a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c). To satisfy the
“substantial showing” standard, a petitioner “must demonstrate that the issues are debatable
among jurists of reason[,] that a court could resolve the issues in a different manner or that
the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle,
463 U.S. 880, 893 (1983) (setting forth the standard for issuance of a certificate of probable
cause, the predecessor to the certificate of appealability).
There is no substantial showing that can be made in this case. Petitioner has made no
credible showing or any new arguments as to why this Court’s ruling was incorrect and,
further, there can be made no substantial showing of the denial of a constitutional right. See
Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). Accordingly, a certificate of
appealability cannot issue in this case.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Petitioner’s Motion for Rule
60(b) (Dkt. 39) is DENIED and any request for Certificate of Appealability is DENIED.

DATED: September 17, 2013

Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM ORDER - 4