United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court is Martin Chavez-Cuevas' ("Chavez-Cuevas") "Motion to Vacate or Amend Judgment by Fraud Upon the Court, Pursuant to Fed. Rules Civ. Proc. Rule 60(B) 28 U.S.C.A" (Crim. Dkt. 150) construed as a Motion to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1). Having reviewed the Motion and the underlying record, the Court enters the following Order denying the Motion.
As more fully stated in the Court's Order of September 14, 2010 (Crim. Dkt. 140), Chavez-Cuevas was convicted by a jury of conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Verdict, Crim. Dkt. 67. The Court imposed a sentence of 360 months to be followed by five years of supervised release. Minutes, Crim. Dkt. 70. Judgment was entered on June 24, 2002. Judgment, Crim. Dkt. 71.
Chavez-Cuevas timely appealed. However, due to apparent difficulties in obtaining transcripts, the opening brief was not filed until March 3, 2005. By that time, the Supreme Court had issued its decision in United States v. Booker, 543 U.S. 220 (2005). Booker effectively rendered the formerly mandatory United States Sentencing Guidelines advisory thus permitting the sentencing court to consider facts beyond those found by a jury or admitted by a defendant without violating the Sixth Amendment.
The appellate proceedings were stayed pending disposition of United States v. Ameline in which the Ninth Circuit was considering the effect of Booker on pending appeals in which Booker errors had not been preserved. USCA Order, Crim. Dkt. 85. On December 15, 2005, the Ninth Circuit affirmed the judgment of the Court but remanded for possible resentencing under the procedures set forth in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). USCA Judgment, Crim. Dkt. 89.
Following the directives of Ameline, the Court ultimately determined that it would not have imposed a materially different sentence had the guidelines been advisory. Order, Crim. Dkt. 122. On September 15, 2008, the Ninth Circuit affirmed the Court's decision. USCA Mem., Crim. Dkt. 137. On July 6, 2010, Chavez-Cuevas filed a Petition for Writ of Error Audita Querela (Crim. Dkt. 139) claiming that Booker rendered his sentence invalid because the Court found the facts supporting the drug quantity and enhancements by a preponderance of evidence when they should have been found by a jury beyond a reasonable doubt. The Court denied the Motion on the alternative grounds (1) that a Writ of Error Audita Querela is not available for a Booker claim given that such a claim is cognizable in a § 2255 proceeding, and (2) that a § 2255 motion would be untimely and that in any event he already had pursued and lost a Booker challenge. Mem. Dec. and Order, Crim. Dkt. 140.
On August 5, 2011, the Ninth Circuit affirmed this Court's decision dismissing Chavez-Cuevas's Writ, and on April 6, 2012, it denied his petition for rehearing en banc. USCA Mem., Crim. Dkt. 144; USCA Order, Crim. Dkt. 146. Chavez-Cuevas's subsequent petition for a writ of certiorari was denied by the Supreme Court on June 18, 2012. On August 8, 2013, Chavez-Cuevas filed the pending Rule 60(b) motion seeking relief in light of the Supreme Court's June 17, 2013 decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that any fact that increases the mandatory minimum sentence is an element of the offense that must be submitted to a jury. As shown below, the Rule 60(b) motion must be construed as a motion.
STANDARD OF LAW
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." "Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are palpably incredible or patently frivolous.'" United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).
Chavez-Cuevas brings the pending Motion requesting the Court "to invoke its inherent power to vacate or amend judgment obtained by fraud of the Court; that defiles the Court." Mot. at 1. His Motion fails as a Rule 60(b) motion because it is challenging his sentence; and, even if ...