United States District Court, D. Idaho
Honorable Edward J. Lodge U.S. District Judge.
before the Court in the above-entitled matter is
Petitioner's Second Motion made pursuant to Federal Rule
of Civil Procedure 60(b) and attached materials. (Dkt. 52.)
Having fully reviewed the record, the Court finds that the
facts and legal arguments are adequately presented in the
briefs and record. In the interest of avoiding further delay,
and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
this Motion shall be decided on the record before the Court.
again asks that this Court appoint counsel and grant an
evidentiary hearing in this matter to verify the validity of
the Affidavit of Bonnie Lieske Forseth dated October 17, 2006
which, Petitioner argues, was lost and/or not properly filed
with the Amended Petition in this case. (Dkt. 52.) Petitioner
argues Ms. Forseth's Affidavit supports his argument that
he is entitled to relief from the Judgment in this case and
his claim that the firearm in question was a gift from his
father, legally purchased, and not reported stolen. (Dkt.
Motion is based on Rule 60(b), which states grounds for
relief from a final judgment including:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal
representative from a final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence...; (3) fraud...; (4) the judgment is void;... (6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b) (emphasis added).
extend the claim raised in this Motion seeks to reopen the
' 2255 proceedings as a new ground for relief, the Motion
is treated as a ' 2255 motion. See United States v.
Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011).
Petitioner claims his constitutional rights have been
violated and an injustice has occurred in this case because
Petitioner's rebuttal of the Government's position
concerning possession of the gun in question in the Amended
Petition was based on the lost Affidavit of Ms. Forseth.
(Dkt. 52.) A “defect in the integrity of the federal
habeas proceedings, ” such as “fraud on the
habeas court, ” might justify reopening ' 2255
proceedings under Rule 60(b). Gonzalez v. Crosby,
545 U.S. 524, 532 & n. 5 (2005). This case, however, is
not one in which Petitioner can or has demonstrated such a
defect or that his is the rare case in which extraordinary
circumstances justify reopening the final order denying his
' 2255 motion pursuant to Rule 60(b)(6) as no defect in
the integrity of Petitioner's ' 2255 proceeding has
been shown. See Buenrostro, 638 F.3d at 722-23.
trial, Petitioner was found guilty Count 16 of the Indictment
charging Felon in Possession of a Firearm as to a Smith and
Wesson Model 39-2, 9mm pistol, serial number A535422. (CR
Dkt. 375.) In the Affidavit Petitioner presents on this
Motion, Ms. Forseth states that in 1981 she purchased a Smith
and Wesson Model 39-2, 9mm pistol, serial number A535422,
from a sporting goods shop in Wisconsin and she then gifted
the weapon to Mr. Gorden Mertens. (Dkt. 52-4, Ex. R.) Ms.
Forseth goes on to state that she asked about the legality of
the purchase when she bought the gun and that she has no
knowledge of the firearms whereabouts. At trial, the ATF
Agent testified that the gun had been reported stolen in
1979, prior to Ms. Forseth's purchase. (Dkt. 52-5, Ex.
EE) (discussing Trial Exhibit 100, Smith and Wesson 9mm
pistol model 39, serial number A535422.) The fact that the
firearm was stolen was not an element the Jury had to find in
order to determine the Petitioner was guilty of Count 16.
(Dkt. 378, Instr. 40.) Thus, the fact that the Affidavit may
not have been submitted with his first § 2255 Petition
nor trial counsel's failure to call Ms. Forseth at trial
do not evidence the Petitioner's innocence nor any defect
in the integrity of the proceedings against him.
extent the Petitioner's Motion seeks to bring a new claim
for relief, independent from those claims adjudicated in his
first ' 2255 case, the Court treats this Rule 60(b)
Motion as a ' 2255 Motion. Buenrostro, 638 F.3d
at 723. As such, the Court must consider whether Petitioner
is allowed to file such a ' 2255 motion. Id.
Section 2255(h) provides:
A second or successive motion must be certified ... by a
panel of the appropriate court of appeals to contain B
(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 have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
there is no basis shown for allowing Petitioner to file this
' 2255 petition. The Affidavit is not newly discovered
evidence going to show the Petitioner's innocence nor any
new rule of ...