Wallace v. USA

Filing 1

ORDER that Petitioner's Motions and Petitions are Denied. IT IS FURTHER ORDERED that Defendant is DENIED a Certificate of Appealability. Signed by Judge Kent J. Dawson on 10/30/2019. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA,

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Case No. 2:11-cr-0094-KJD-CWH
Plaintiff,

ORDER

v.
ADAM BRENT WALLACE,

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Defendant.

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Presently before the Court are Defendant’s Motions and Petitions

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(#159/170/175/176/177/181). Defendant’s initial appeal following his guilty plea and sentencing

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was voluntarily withdrawn, because Defendant had knowingly waived his right to appeal his

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conviction and low-end guideline sentence. Defendant has previously filed two (2) motions

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arising under 28 U.S.C. § 2255. Both motions were denied: one on the merits (#66) and another

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for failure to receive permission of the Ninth Circuit to file a second or successive petition

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(#150) as required by 28 U.S.C. § 2255(h). Appeals of both motions were dismissed after

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Defendant failed to obtain certificates of appealability.

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Defendant has also filed numerous motions, post judgment, to dismiss his indictment, for

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reconsideration, and for other forms of relief which essentially attack his conviction. Currently,

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Defendant has filed a bevy of motions seeking relief under Civil Rule of Procedure 60, writs of

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error coram nobis, and to reopen his original § 2255. Defendant cannot make these motions

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under 28 U.S.C. § 2255 because he is no longer in federal custody on his sentence and because

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he has not obtained permission to file a second or successive petition in accordance with 28

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U.S.C. § 2255(h).

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Like his previous attempts, his most recent attempts at setting aside his conviction for

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receipt of child pornography must be dismissed. First, Defendant cannot meet the high bar for

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obtaining a writ of coram nobis. “[A] petitioner must show the following to qualify for coram

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nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the

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conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the

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case or controversy requirement of Article III; and (4) the error is of the most fundamental

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character.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Regardless of the

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merits of his motion, which are not good, Defendant cannot meet the second prong of

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Hirabayashi because he failed, without cause, to raise his argument based on U.S. v. Davenport,

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519 F.3d 940 (9th Cir. 2008) earlier. Therefore, Defendant’s petition for a writ of error coram

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nobis is denied.
Further, Defendant’s motion to reopen his § 2255 motion must be denied. With respect to

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Rule 60(b), in Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that a prisoner

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may not rely on Rule 60(b) to raise a new claim in federal habeas proceedings that would

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otherwise be barred as second or successive under § 2254. Id. at 531. Because § 2254 is nearly

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identical to § 2255 in substance, the Ninth Circuit and several others have applied Gonzalez to

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Rule 60(b) motions to reopen § 2255 proceedings. See United States v. Buenrostro, 638 F.3d

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720, 722 (9th Cir. 2011) (collecting cases). Wallace has not sought the authorization necessary to

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file a successive 28 U.S.C. § 2255 petition. See 28 U.S.C. §§ 2244, 2255(h). Defendant’s

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remaining arguments lack the specificity to be addressed. Therefore, Defendant’s claims under

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Rule 60(b) and (d) are dismissed.
Finally, Defendant is unable to demonstrate that reasonable jurists would find the court’s

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assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S.

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473, 483-84 (2000). Therefore, the Court cannot grant Defendant a certificate of appealability.
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motions and Petitions

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(#159/170/175/176/177/181) are DENIED;

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IT IS FURTHER ORDERED that Defendant is DENIED a Certificate of Appealability.
Dated this 30th day of October, 2019.

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_____________________________
Kent J. Dawson
United States District Judge

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