Kandi v. United States of America

Filing 39

ORDER Denying Motion for Relief Pursuant to Fed.R.Civ.P. 60(B), by Judge Ronald B. Leighton. (See CR13-5369RBL) (DK)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. CR13-5369RBL

EMIEL KANDI,
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Petitioner,
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CV16-5389RBL

v.
UNITED STATES OF AMERICA,

ORDER DENYING MOTION FOR
RELIEF PURSUANT TO
FED.R.CIV.P. 60(B)

Respondent.

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THIS MATTER is before the Court on Petitioner’s Motion for Relief Pursuant to Fed. R.

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Civ. P. Rule 60(b) [Dkt. #78]. The Court has reviewed the materials for and against said motion

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and for the following reasons the Court DENIES said motion.

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On April 18, 2014, Emiel Kandi pleaded guilty to two counts of a seven-count
Indictment related to a mortgage fraud scheme. CR 36, 37. Kandi pleaded guilty to Count
1, which charged Conspiracy to Make False Statements to HUD, and Count 2, which
charged Making False Statements in a Loan Application. On October 22, 2014, the Court

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sentenced Emiel Kandi to 60 months’ imprisonment on Count 1, and 60 months’
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imprisonment on Count 2, with the sentences to be served concurrently. CR 51. Per his
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ORDER DENYING MOTION FOR RELIEF
PURSUANT TO FED.R.CIV.P. 60(B) - 1

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Plea Agreement, Kandi waived his right to challenge the sentence on appeal, and he did

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not file a notice of appeal.

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On May 23, 2016, the Court received and filed Kandi’s Motion to Correct
Sentence under 28 U.S.C. § 2255 (“the 2255 Motion”). See Kandi v. United States, No.
CV 16-5389RBL (“CV”). In the 2255 Motion, Kandi claimed that his plea was not

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voluntary and second, he claims that he received ineffective assistance of counsel. Kandi
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filed motions for writs of audita querela and quo warranto. He also filed a motion for
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sentencing reduction under 18 U.S.C. § 3582(c)(2) based on an amendment to the
“sophisticated means” enhancement.
On October 27, 2016, the Court denied his petition on all grounds, finding that it
was both untimely and meritless. See CV 18 (2255 Order).

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On October 13, 2017, Kandi prepared a motion for relief pursuant to Federal Rule

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of Civil Procedure 60(b) (“Rule 60(b) Motion”). CR 78 (Motion); CR 79 (Memorandum

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in Support); CR 80 (Affidavit). Fed. R. Civ. P. 60(b) allows a court to relieve a party

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from a civil judgment, for certain enumerated reasons, upon a motion filed within one

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year. See Fed. R. Civ. P. 60(b)(1)-(6); 60(c)(1). As to reasons, Kandi apparently brings
the Rule 60(b) Motion pursuant to Section (b)(6), which permits a court to grant relief for

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“any other reasons that justifies relief.” CR 79 at 6. As to timing, the Rule 60(b) Motion
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apparently seeks relief from the 2255 Order entered in 2016.
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Kandi seeks relief from the 2255 Order on three grounds: 1) the Court improperly
applied a leadership sentencing guidelines enhancement (CR 79 at 1-3); 2) the Court
improperly applied an abuse of trust guidelines enhancement (CR 79 at 3-4); and 3)
ORDER DENYING MOTION FOR RELIEF
PURSUANT TO FED.R.CIV.P. 60(B) - 2

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Kandi was improperly convicted of conspiracy without any named co-conspirators or

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related cases (CR 79 at 4-6).

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As an initial matter, it is clear that the Rule 60(b) Motion can only be directed to
the civil judgment, not the criminal judgment. The motion is brought pursuant to the rules
of civil procedure. Cf. United States v. McAllister, 601 F.3d 1086, 1087 (10th Cir. 2010)

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(finding that Rule 60(b) motion not available to challenge denial of motion for reduction
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of sentence). Also, it is not timely under the rules of criminal procedure.
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Considered as a challenge to the 2255 Order, the Rule 60(b) Motion still must fail,
because it is actually a second successive 2255 petition. A second 2255 petition must be
authorized by an appropriate court. See 28 U.S.C. § 2255(h).
To distinguish between a second successive 2255 petition and a legitimate Rule

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60(b) motion, courts examine whether the motion raises a “new claim” or merely “attacks

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the federal court’s resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S.

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524, 531-32 (2005). On the other hand, if the motion asserts some defect in the integrity

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of the federal habeas proceedings, it is a legitimate Rule 60(b) motion. United States v.

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Washington, 653 F.3d 1057, 1063 (9th Cir. 2011). An example of a defect in the integrity
of the habeas proceedings is a fraud on the federal habeas court. See id.; see also Todd v.

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United States, No. C11-470JLR, 2012 WL 5351845, *2 (W.D. Wash. Oct. 29, 2012).
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Kandi’s Rule 60(b) Motion, which attacks the guidelines and his conspiracy
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conviction, raises new claims and is a prohibited second 2255. Kandi also attacks the
merits of the Court’s ruling on the 2255 by challenging the Court’s declination to hold an
evidentiary hearing. CR 79 at 7-8. An allegation that a district court judge declined to
ORDER DENYING MOTION FOR RELIEF
PURSUANT TO FED.R.CIV.P. 60(B) - 3

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conduct an evidentiary hearing “does not constitute an allegation of a defect in the

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integrity of the proceedings; rather, such arguments are merely asking ‘for a chance to

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have the merits determined favorably.’” Washington, 653 F.3d at 1064, quoting

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Gonzalez, 545 U.S. at 532 n.5. It is clear that the Rule 60(b) Motion is merely a second
successive 2255 motion.

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For the foregoing reasons, the Rule 60(b) motion [Dkt. #78] is DENIED and the
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Court DENIES the issuance of a certificate of appealability.
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Dated this 5th day of February, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION FOR RELIEF
PURSUANT TO FED.R.CIV.P. 60(B) - 4