McAllister v. United States of America

Filing 49

ORDER on Motion to Dismiss Conviction and Motion to Stay Probation, signed by Judge Ronald B. Leighton. (Case Related to CR13-5464RBL)(Copy mailed to Patrick McAllister @ Tacoma address.) (DK)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PATRICK MCALLISTER,

CASE NO. C16-6032 RBL

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Petitioner,
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v.

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ORDER ON MOTION TO DISMISS
CONVICTION AND MOTION TO
STAY PROBATION

UNITED STATES OF AMERICA,

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Respondent.

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THIS MATTER is before the Court on pro se Petitioner Patrick McAllister’s Motion to

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Dismiss Conviction Pursuant to Rule 60(b) [Dkt. 39]1 and his Motion to Stay Probation [Dkt.

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46]. In 2012, McAllister was convicted by a jury in Jefferson County Superior Court of 31

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counts of rape and assault against his non-citizen fiancée and sentenced to 250 months

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imprisonment. In 2013, McAllister pled guilty to a single count of immigration fraud (18 U.S.C.

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§ 1546(a)) for making a false declaration on a Petition for Alien Fiancé(e) (I-129F) form that he

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submitted to federal immigration authorities. This Court sentenced McAllister to time served and

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one year of supervised release to commence after the completion of his state sentence. The Court

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McAllister filed an identical Motion to Dismiss Conviction in his related criminal case. See
United States v. Patrick McAllister, 3:13-cr-5464-RBL, Dkt. 86.
ORDER ON MOTION TO DISMISS CONVICTION
AND MOTION TO STAY PROBATION - 1

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also ordered several special conditions of supervision, including the requirement that McAllister

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undergo a sexual deviancy evaluation and participate in a certified sexual deviancy treatment

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program designated by the U.S. Probation and Pretrial Services Office. See United States v.

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McAllister, 3:13-cr-5464-RBL, Dkt. 62 at 4. McAllister appealed but the Ninth Circuit affirmed

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his conviction. McAllister’s subsequent petition to vacate his conviction pursuant to 28 U.S.C. §

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2255 was also denied. See Dkt. 1; Dkt. 29.

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In July 2017, the Washington Court of Appeals (Division II) reversed McAllister’s rape

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and assault convictions on ineffective assistance of counsel grounds. In re McAllister, 199 Wash.

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App. 1068 (Wash. Ct. App. 2017). McAllister now asserts that the reversal of his state

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convictions for rape and assault justify vacating his federal immigration fraud conviction.

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McAllister also seeks to delay the imposition of his supervised release pending the Court’s ruling

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on his Rule 60 motion. The Government opposes McAllister’s motions, arguing that the vacated

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state convictions are immaterial to McAllister’s federal conviction, and that there is no grounds

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to delay the imposition of supervised release.

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I. LEGAL STANDARD

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Courts have an obligation to construe a pro se petitioner’s pleadings liberally. See

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Balistreri v. Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990); Bretz v. Kelman, 773 F.2d

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1026, 1027 n.1 (9th Cir. 1985). Fed. R. Civ. P. 60(b) “allows a party to seek relief from a final

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judgment, and request reopening of his case, under a limited set of circumstances including

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fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).

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This rule, however, is not intended to provide relief from a criminal judgment. See United States

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v. Andrade-Larrios, 39 F.3d 986, 988 (9th Cir. 1994). A § 2255 petition for habeas relief is the

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proper avenue for a prisoner in federal custody to petition the court that sentenced him to vacate,

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ORDER ON MOTION TO DISMISS CONVICTION
AND MOTION TO STAY PROBATION - 2

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set aside, or correct his sentence if it imposed his sentence “in violation of the Constitution or

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laws of the United States” or lacked “jurisdiction to impose such sentence,” or if his sentence

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exceeded “the maximum authorized by law” or “is otherwise subject to collateral attack.” 28

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U.S.C. § 2255(a). The obtain relief, the movant must prove, by a preponderance of the evidence,

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the existence of an error rendering his conviction unlawful. See Simmons v. Blodgett, 110 F.3d

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39, 42 (9th Cir. 1997). The petitioner bears the burden of establishing any factual predicates

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necessary to establish his claims. See Grady v. United States, 929 F.2d 468, 471 (9th Cir. 1991).

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A second or successive habeas petition must be preauthorized by the Court of Appeals before it

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can be considered by the district court. See 28 U.S.C. § 2255(h)(1); 28 U.S.C. § 2244(b); Crosby,

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545 U.S. at 531–32.

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II. ANALYSIS

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A. Rule 60(b) Motion to Vacate Criminal Conviction

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McAllister already filed a § 2255 petition challenging his immigration fraud conviction,

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arguing that his plea was involuntary, that the Government withheld exculpatory evidence, and

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that his lawyer failed to competently represent him. Dkt. 1. The Court denied the petition,

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determining McAllister’s knowing and voluntary waiver of his appellate rights procedurally

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barred his collateral attack on his conviction. Dkt. 29. The Court also rejected McAllister’s

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ineffective assistance of counsel claim as meritless. Id. Both this Court and the Ninth Circuit

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declined to issue a certificate of appealability. Id. at 5; Dkt. 38.

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McAllister now purports to challenge his immigration fraud conviction under Fed. R.

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Civ. P. 60(b). Dkt. 39; Dkt. 48 at 2. But, as the U.S. Supreme Court observed, “[v]irtually every

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Court of Appeals to consider the question has held that such a pleading, although labeled a Rule

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60(b) motion, is in substance a successive habeas petition and should be treated accordingly.”

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Crosby, 545 U.S. at 531. The Court must treat McAllister’s Rule 60(b) motion to vacate his
ORDER ON MOTION TO DISMISS CONVICTION
AND MOTION TO STAY PROBATION - 3

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immigration fraud conviction as a successive § 2255 petition. The Court may not adjudicate

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McAllister’s second § 2255 petition absent prior authorization from the Ninth Circuit Court of

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Appeals. 28 U.S.C. § 2255(h)(1); 28 U.S.C. § 2244(b). Because McAllister has not received

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authorization to file a subsequent § 2255 petition, his motion [Dkt. 39] is DENIED.

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Even if McAllister’s second § 2255 petition were properly before the Court, the reversal

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of his state convictions has no bearing on his federal conviction for immigration fraud.

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McAllister repeatedly conflates his state rape and assault convictions, which were reversed by

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the Washington Court of Appeals, with his federal conviction for making a false declaration on

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the I-129F form, which has been affirmed by the Ninth Circuit. See United States v. McAllister,

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634 F. App’x 202 (9th Cir. 2015) (holding McAllister’s waiver of his appellate rights in his plea

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agreement was knowing and voluntary, and that the government did not breach the plea

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agreement by recommending special conditions of supervised release). McAllister’s assertion

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that the state case and the federal case “were 100% integrated, where the Federal case is

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predicated on the state conviction” is simply incorrect. Dkt. 39 at 1. McAllister was charged with

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different crimes, by different sovereigns, adjudicated in separate proceedings before different

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courts. Although the state charges against McAllister may have ultimately brought the attention

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of federal immigration authorities to McAllister’s immigration fraud, the state rape and assault

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charges are otherwise unrelated to the federal immigration fraud conviction.

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B. Motion to Stay Probation

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McAllister “moves this Court for a stay of his probation until petitioner’s motion to

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dismiss and or the Supreme Court decides to issue a (COA) or not.” Dkt. 46 at 1. The Court has

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denied McAllister’s Rule 60(b) motion above, and there is no indication from the docket that

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McAllister has filed a petition for certiorari with the U.S. Supreme Court. The Court determines

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that there are no grounds which justify staying McAllister’s term of supervised release, which
ORDER ON MOTION TO DISMISS CONVICTION
AND MOTION TO STAY PROBATION - 4

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began when McAllister was released from state custody on October 20, 2017. Accordingly,

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McAllister’s motion to stay supervised release is DENIED.

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Construing McAllister’s motion liberally, the Court also interprets it as a request to

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modify the special conditions of supervision requiring McAllister to undergo sexual-deviancy

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evaluation and treatment. The Government requests the opportunity to confer with the Probation

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Office and respond separately regarding modifications to McAllister’s supervised release.

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Accordingly, the Court STAYS Special Conditions of Supervision Nos. 3 and 4. The

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Government shall file a response stating its position as to whether a modification removing these

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special conditions of supervision is appropriate in light of the reversal of McAllister’s state rape

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convictions by December 13, 2017.

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III. CONCLUSION
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McAllister’s identical Motions to Dismiss Conviction Pursuant to Rule 60(b) [Dkt.
39, 3:16-cv-6032 (civil case); Dkt. 86, 3:13-cr-5464 (criminal case)] are DENIED.

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McAllister’s Motion to Stay Probation [Dkt. 46] is DENIED.

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Special Conditions of Supervision Nos. 3 and 4 [Dkt. 62, 3:13-cr-5464-RBL] are

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STAYED. The Government shall file a response by December 13, 2017 addressing

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whether special conditions mandating sexual deviancy evaluation and treatment
designated by the U.S. Probation Office are warranted.

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IT IS SO ORDERED.
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Dated this 28th day of November, 2017.
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A

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Ronald B. Leighton
United States District Judge

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ORDER ON MOTION TO DISMISS CONVICTION
AND MOTION TO STAY PROBATION - 5