Ha v. United States of America

Filing 17

ORDER - Petitioner's 15 Motion to Set Aside Judgment is denied and dismissed in its entirety. Signed by Judge Mark W Bennett on 5/1/12. (copy w/nef mailed to pro se petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

KHOI VAN HA,
Petitioner,

No. C 11-4012-MWB

vs.

ORDER REGARDING
PETITIONER’S MOTION TO
UNITED STATES OF AMERICA,
VACATE JUDGMENT REGARDING
THE DISMISSAL OF PETITIONER’S
Respondent.
28 U.S.C. SECTION 2255 MOTION
____________________
I. INTRODUCTION
This case is before me on petitioner Khoi Van Ha’s Pro Se Motion To Vacate

Judgment Regarding The Dismissal Of Petitioner’s 28 U.S.C. § 2255 (docket no. 15)
(Motion), filed on March 26, 2012. In his Motion, Ha claims that my previous ruling
denying his Motion Under 28 U.S.C. § 2255 was procedurally defective because he had
ineffective assistance of counsel. See Motion at 3-4. Ha seeks to have my previous
Memorandum Opinion and Order, and Judgment (docket nos. 7 & 8), denying him §2255
relief, vacated and asks to be given additional time to amend or supplement his §2255
motion. Motion 5-6. The respondent has not filed a response to Ha’s Motion.
II. LEGAL ANALYSIS
Rule 60(b) of the Federal Rules of Civil Procedure allows for relief from a
judgment or order under certain prescribed circumstances and applies to habeas
proceedings to the extent it is not inconsistent with the Anti-Terrorism and Effective Death
Penalty Act (AEDPA). See Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009); see also

28 U.S.C. § 2255; Fed. R.Civ.P. 60(b); Fed.R.Civ.P. 81(a)(4). However, if a motion
pursuant to Rule 60(b) is actually a successive § 2255 motion, it requires certification by
a court of appeals before filing. See 28 U.S.C. §§ 2244(b)(3)(A). “It is well-established
that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for
filing a second or successive § 2254 or § 2255 action by purporting to invoke some other
procedure.” United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005); see also
United States v. Patton, 309 F. 3d 1093, 1094 (8th Cir. 2002) (per curiam) (inmates may
not bypass authorization requirement of § 2255 by purporting to invoke some other
procedure); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (if a
Rule 60(b) motion is actually a successive habeas petition, the district court should deny
it for failure to obtain authorization from the court of appeals, or in its discretion, transfer
the motion to the court of appeals).
District courts, when presented with a purported Rule 60(b) motion following the
dismissal of a previous habeas petition, should conduct a brief initial inquiry to determine
whether the allegations in the Rule 60(b) motion in fact amount to a second or successive
collateral attack under 28 U.S.C. § 2255. See Boyd, 304 F.3d at 814.
A Rule 60(b) motion seeking relief from the denial of a § 2255 motion and raising
claims of a postconviction relief nature should be construed as a successive 2255 motion.
See Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir. 1993); see also Blair v. Armontrout, 976
F.2d 1130, 1134 (8th Cir. 1992). A Rule 60(b) motion is a second or successive habeas
corpus application if it contains a claim. Ward, 577 F.3d at 933. When no “claim” is
presented, there is no basis for contending that the Rule 60(b) motion should be treated like
a habeas corpus application. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005). For the
purpose of determining whether the motion is a habeas corpus application, “claim” is
defined, as applicable to the facts of this case, as an attack on the “federal court’s previous
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resolution of the claim on the merits.” See Ward, 577 F.3d at 933. “On the merits” refers
“to a determination that there exist or do not exist grounds entitling a petitioner to habeas
corpus relief ....” Id. When a Rule 60(b) motion presents a claim, it must be treated as
a second or successive habeas petition under AEDPA. Id.
No claim is presented if the motion attacks “some defect in the integrity of the
federal habeas proceedings.” See Gonzalez, 545 U.S. at 532. “Likewise, a motion does
not attack a federal court’s determination on the merits if it ‘merely asserts that a previous
ruling which precluded a merits determination was in error-for example, a denial for such
reasons as failure to exhaust, procedural default, or statute-of-limitations bar.’” Ward, 577
F.3d at 933 (quoting Gonzalez, 545 U.S. at 530). “The Supreme Court has ‘note[d] that
an attack based on the movant’s own conduct, or his 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’”. Id. (quoting Gonzalez, 545 U.S. at 532 n.5).
Although an assertion of ineffective assistance of habeas counsel may be characterized as
a defect in the integrity of the habeas proceeding, it ultimately seeks to assert or reassert
substantive claims with the assistance of new counsel. Id. at 932. Moreover, the AEDPA
specifically prohibits such grounds for relief. Id.
Ha’s Rule 60(b) Motion seeks to vacate my previous Memorandum Opinion and
Order, and Judgment (docket nos. 7 & 8), of October 3, 2011, denying his request for
relief pursuant to 28 U.S.C. § 2255, on the ground that counsel appointed to represent him
provided ineffective assistance by failing to communicate with him and by failing to
provide him with copies of documents. Motion 3-4. Because Ha’s only claim is that he
received ineffective assistance of counsel, his claim is denied and dismissed because it
ultimately seeks to assert or reassert substantive claims, which makes his Motion a
successive § 2255 motion for which he has failed to obtain authorization from the Eighth
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Circuit Court of Appeals. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.
2005) (citing Boyd v. United States, 304 f.3d 813, 814 (8th Cir. 2002) (per curiam)).
III. CONCLUSION
Upon the foregoing, Ha’s March 26, 2012, Pro Se Motion To Vacate Judgment
Regarding The Dismissal Of Petitioner’s 28 U.S.C. §2255 Motion (docket no. 15) is
denied and dismissed in its entirety.
IT IS SO ORDERED.
DATED this 1st day of May, 2012.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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