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United States v. Motta

United States District Court, D. Hawaii

August 4, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ETHAN MOTTA, Defendant. CR. No. 06-00080 SOM

          ORDER REFERRING TO NINTH CIRCUIT DEFENDANT ETHAN MOTTA’S SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2255; EXHIBIT A

          Susan Oki Mollway United States District Judge.

         Before this court is Defendant Ethan Motta’s “Pro Se Motion For Relief From Judgment or Order Pursuant to Rule 60(b)(1), (2) and (6) Federal Rules of Civil Procedure.” Having received briefs from Motta and the Government on the issue of whether this court may consider the merits of Motta’s motion, this court construes that motion as a second or successive motion brought under 28 U.S.C. § 2255, notwithstanding Motta’s characterization of his motion as brought under Rule 60(b) of the Federal Rules of Civil Procedure. As Motta presents no evidence that he has met the requirement in § 2255(h) that a second or successive motion be certified by the Ninth Circuit, this court transfers the motion, a copy of which is attached as Exhibit A to this order, to the Ninth Circuit pursuant to Circuit Rule 22-3(a).

         I. BACKGROUND INFORMATION

         Following a lengthy jury trial, Motta and Co-Defendant Rodney Joseph were found guilty in 2009 of several felonies, the most serious being counts of murder and attempted murder in aid of racketeering activity. By statute, life in prison was the mandatory sentence for those counts. Motta and Joseph appealed, and the Ninth Circuit affirmed in a memorandum disposition filed on January 10, 2012. Motta filed a certiorari petition with the Supreme Court, which denied the petition on February 19, 2013. The case has remained active since then, as shown by the hundreds of docket entries in the case file between then and now.

         The present motion is not the first one that this court views as brought by Motta under § 2255. Motta’s first § 2255 motion is labeled as having been brought under § 2255. It states that it was Dated: February 21, 2014. The envelope in which the motion was mailed has a postmark of the same day, although a transmittal letter included with the motion bears a date of February 20, 2014. The motion was received by this court on February 24, 2014. Conscious that the “prison mailbox” rule applied and uncertain whether equitable tolling might be warranted, this court ordered briefing on the issue of whether Motta’s first § 2255 motion was timely. This court ultimately appointed counsel to represent Motta at an evidentiary hearing on whether the first § 2255 motion had been submitted within the one-year deadline provided for in § 2255(f), or, if not, whether equitable tolling applied.

         On June 6, 2014, while the first § 2255 motion was pending and before this court had resolved the issue of the timeliness of that first § 2255 motion, Motta placed into the prison mail system his “Motion Seeking Relief To Vacate, Set Aside or Correct Sentence Based on Recent Supreme Court Precedent.” This motion sought relief “in light of the Supreme Court’s recent ruling in United States v. Alleyne, decided June 17th, 2013.” The motion also asked that, “[i]f the district court for whatever reason decides that ‘Alleyne’ does not apply retroactively to his case, th[e]n the defendant respectfully ask that the Honorable court allow him to raise his ‘Alleyne’ argument as a supplemental argument in his 2255 petition.” The motion was accompanied by a letter addressed to the Clerk of Court that included the following statement: “Let it be known this is not a second and successive 2255 motion, but strictly an ‘Alleyne’ motion and should not be misconstrued as a second and successive 2255.”

         During June 2014 and in the following months, there was considerable activity in this case. With the timeliness of Motta’s first § 2255 motion still unresolved, Motta, Joseph, and the Government were also filing other papers, and the Ninth Circuit was communicating with Joseph and this court about matters pending on appeal. Possibly because of the flurry of activity at the time, neither the Government’s response to Motta’s “Alleyne” motion nor this court’s order denying the “Alleyne” motion on October 14, 2014, addressed the issue of whether the “Alleyne” motion was actually a second or successive motion under § 2255 that should have been transferred to the Ninth Circuit for consideration as to whether certification should issue. Instead, in a short order, this court denied the “Alleyne” motion on the ground that Alleyne v. United States, 133 S.Ct. 2151 (2013), did not apply retroactively to cases on collateral review. The Government now characterizes Motta’s “Alleyne” motion as having been a second or successive § 2255 motion, and the court is inclined to agree. However, as it turns out, this does not affect the present order one way or the other.

         The first § 2255 motion was not decided until months after this court had denied Motta’s “Alleyne” motion. On June 16, 2015, following a change in defense counsel and an evidentiary hearing, this court dismissed the first § 2255 motion as untimely and declined to issue a certificate of appeal ability. On November 2, 2015, the Ninth Circuit similarly denied Motta’s request for a certificate of appeal ability.

         Motta filed the purported Rule 60(b) motion now pending before this court on June 15, 2016, having signed it on June 13, 2016.

         II. ANALYSIS.

         A. A District Court Lacks Jurisdiction To Address a Second or Successive § 2255 Motion Absent a Circuit Court Certification.

         In passing the Antiterrorism and Effective Death Penalty Act, Congress imposed “significant limitations on the power of federal courts to award relief to prisoners who file ‘second or successive’ habeas petitions.” United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009). In 28 U.S.C. § 2255(h), Congress said:

(h) A second or successive motion must be certified as provided in section 2244 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 ...

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