United States District Court, D. Hawaii
ORDER (1) DENYING DEFENDANT-PETITIONER'S MOTION
TO RELIEVE PETITIONER FROM FINAL JUDGMENT PURSUANT TO RULE
60(B), ECF NO. 160; AND (2) REFERRING MOTION TO NINTH CIRCUIT
COURT OF APPEALS
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
11, 2016, pro se Defendant-Petitioner Uiki Teaupa
(“Teaupa”) filed a motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Motion”). ECF No.
145.Teaupa argued that he was provided
constitutionally ineffective assistance when his trial
counsel failed: (1) to move pretrial to dismiss the
Superseding Indictment; (2) to object to the amount of
methamphetamine attributed to Teaupa at sentencing; (3) to
seek a two-level reduction for acceptance of responsibility
at sentencing; and (4) to appeal the government's failure
to file a motion at sentencing for a downward departure based
on substantial assistance. On December 12, 2016, the court
denied the § 2255 Motion and denied a certificate of
appealability. ECF No. 152. On June 12, 2017, the Ninth
Circuit denied Teaupa's request for a certificate of
appealability, finding that he failed to make a
“substantial showing of the denial of a constitutional
right.” ECF No. 158. Then, on August 2, 2017, the Ninth
Circuit denied Teaupa's motion for reconsideration and
rehearing en banc. ECF No. 159.
now moves for relief pursuant to Federal Rule of Civil
Procedure 60(b) (“Rule 60(b) Motion”). ECF No.
160. He claims that this court failed to afford him the
opportunity to conduct discovery and that the court erred in
not holding an evidentiary hearing on his § 2255 Motion.
Because the court determines that Teaupa's Rule 60(b)
Motion raises “claims” on the merits (and not a
defect in the integrity of the § 2255 Motion
proceedings), it must be construed as a second or successive
§ 2255 petition. The court thus refers the Rule 60(b)
Motion to the Ninth Circuit pursuant to Ninth Circuit Rule
60(b) provides that a district court may relieve a party from
a final judgment, order, or proceeding where the movant has
shown one or more of the following: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have
been discovered before the court's decision; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released or discharged; or (6) any other reason justifying
relief. A party seeking Rule 60(b)(6) relief must show
“‘extraordinary circumstances' justifying the
reopening of a final judgment.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann
v. United States, 340 U.S. 193, 199 (1950)).
60(b) motion, however, cannot be used to undermine the
limitations on the collateral attack of a federal conviction.
A federally convicted defendant is generally limited to a
single § 2255 petition; a “second or
successive” § 2255 petition may not be filed or
considered without meeting “the exacting standards of
28 U.S.C. § 2255(h).” United States v.
Washington, 653 F.3d 1057, 1059 (9th Cir.
2011). And “[b]ecause of the difficulty of
meeting this standard, petitioners often attempt to
characterize their motions in a way that will avoid the
strictures of § 2255(h), ” including
characterizing “their pleading as being a motion under
Rule 60(b) of the Federal Rules of Civil Procedure.”
Id. at 1059.
order to determine whether a motion brought under Rule 60(b)
is a second or successive § 2255 petition or a
properly-brought Rule 60(b) motion, courts examine the
substance of the motion to see if it sets forth a
“claim” (such that it must be construed as a
§ 2255 petition) or raises a defect in the integrity of
the § 2255 proceeding (such that it is a proper Rule
60(b) motion). Gonzalez, 545 U.S. at
531-33. As an example, Gonzalez teaches
that a Rule 60(b) motion sets forth a claim “if it
attacks the federal court's previous resolution of a
claim on the merits[.]” Id. at 532.
On the other hand, a properly-brought Rule 60(b) motion
includes one asserting a defect in the integrity of the
§ 2255 proceeding. Id.
the Ninth Circuit, a Rule 60(b) motion asserting that the
district court declined to hold an evidentiary hearing is
considered a “claim” on the merits of the §
Similarly, [Defendant's] argument that [the district
court judge] mishandled the § 2255 motion because he
failed to develop the record sufficiently, lacked familiarity
with the facts of the case, failed to make detailed rulings
on each of [Defendant's] claims, and declined to conduct
an evidentiary hearing on [Defendant's] actual innocence
claim, does not constitute an allegation of a defect in the
integrity of the proceedings; rather, such arguments are
merely asking “for a second chance to have the merits
determined favorably, ” Gonzalez, 545 U.S. at
532 n. 5, 125 S.Ct. 2641, and are precisely the sort of
attack on “the federal court's previous resolution
of a claim on the merits, ” id. at 532, 125
S.Ct. 2641 (emphasis omitted), that Gonzalez
characterized as a “claim” which is outside the
scope of Rule 60(b).
Washington, 653 F.3d at 1064. Many other courts
agree. See, e.g., In re Lindsey, 582 F.3d
1173, 1175 (10th Cir. 2009) (finding that challenging the
failure to hold an evidentiary hearing is a claim on the
merits); McCurdy v. United States, 2016 WL 1170970
(D. Maine Mar. 24, 2016); Robles-Garcia v. United
States, 2014 WL 3534016 (N.D. Iowa July 16, 2014);
Blackwell v. United States, 2009 WL 3334895 (E.D.
Mo. Oct. 14, 2009).
the decision to rule on Teaupa's § 2255 Motion
without a hearing was a merits-based decision. In its
December 12, 2106 Order, this court stated,
A court may dismiss a § 2255 motion if “it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief.” R. 4(b), Rules Governing Section
2255 Proceedings. A court need not hold an evidentiary
hearing if the allegations are “palpably incredible
[or] patently frivolous, ” Blackledge v.
Allison, 431 U.S. 63, 76 (1977), or if the issues can be
conclusively decided on the basis of the evidence in the
record. See United States v. Mejia-Mesa, 153 F.3d
925, 929 (9th Cir. 1998) (noting that a “district court
has discretion to deny an evidentiary hearing on a §
2255 claim where the files and records conclusively show that
the movant is not entitled to relief”). Conclusory
statements in a § 2255 motion are insufficient to
require a hearing. United States v. Johnson, 988
F.2d 941, 945 (9th Cir. 1993). A petitioner must
“allege specific facts which, if true, would entitle
him to relief.” United States v. Rodrigues,
347 F.3d 818, 824 (9th Cir. 2003) (internal quotation marks
and citation omitted).
Because the court concludes that the issues in Teaupa's
§ 2255 Motion can conclusively be decided on the basis
of the existing record, the court will ...