United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge
case is before the Court on an order of remand from the
United States Court of Appeals for Ninth Circuit. Civ. Dkt.
32. The Ninth Circuit asks this Court to determine whether
Mark Allan Saltzer (“Saltzer”) is entitled to a
certificate of appeal stemming from this Court's denial
of his Motion for Relief from the Court's December 8,
2015 Memorandum Decision and Order and Judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6). Civ. Dkt. 29. For
the following reasons, the Court concludes that a certificate
of appealability will not issue.
August of 2012, Saltzer was arrested and charged in state
court with ten counts of Sexual Exploitation of Children-each
of which carried a maximum punishment of thirty years in
prison. Dec. 8, 2015 Mem. Decision and Order at 1,
Civ. Dkt. 14. Saltzer's lawyer, Charles Peterson,
negotiated a deal on Saltzer's behalf whereby Saltzer
would cooperate fully with federal investigators, and plead
guilty to the federal charges. Id. at 2. In
exchange, the state charges were dismissed. Id. On
July 30, 2013, pursuant to a Rule 11(c)(1)(B) plea agreement,
Saltzer pleaded guilty to an Information that charged him
with one count of Sexual Exploitation of Children, in
violation of 18 U.S.C. § 2251(a). Id. On
November 12, 2013, Saltzer was sentenced by the Court to 348
months' incarceration, based on a guideline range of
324-360 months, followed by 20 years of supervised release.
Id. at 3.
did not file an appeal from the sentence, but instead, on
October 23, 2014, brought a 28 U.S.C. § 2255 motion to
vacate his sentence based upon a claim of eight grounds of
ineffective assistance of counsel. Id. (see
Civ. Dkt. 1 and Crim. Dkt. 49). On December 8, 2015, this
Court denied Saltzer's § 2255 motion and declined to
issue a certificate of appealability. Id. at 28;
see also Dec. 16, 2015 Judgment, Civ. Dkt. 16.
Saltzer then sought a certificate of appealability from the
Ninth Circuit, which was denied, and then a writ of
certiorari from the Supreme Court, which was also denied.
Civ. Dkts. 20 and 22.
March 20, 2017, Saltzer filed a motion under Rule 60(b)
seeking relief from the Court's December 8, 2015
decision. Civ. Dkt. 23. The Court denied Saltzer's motion
on two grounds. Civ. Dkt. 29. First, the Court concluded that
it lacked jurisdiction because Saltzer's Rule 60(b)
motion was in fact a thinly “disguised second or
successive motion under § 2255.” Civ. Dkt. 29
(citation omitted). Second, the Court concluded that
Saltzer's motion failed on the merits to entitle him to
relief under Rule 60(b). Id. At bottom, the Court
identified the following flaw in Saltzer's motion: even
if the Court accepted all Saltzer's allegations regarding
improperly withheld evidence and ineffective assistance of
counsel as true, Saltzer failed to demonstrate that the
outcome of his sentencing would have been different.
Id. at 11-12.
§ 2255 movant cannot appeal from the denial or dismissal
of his § 2255 motion unless he has first obtained a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b). A certificate of appealability will issue
only when a movant has made “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To satisfy this standard when the court has
dismissed a § 2255 motion on procedural grounds, the
movant must show that reasonable jurists would find debatable
(1) whether the court was correct in its procedural ruling,
and (2) whether the motion states a valid claim of the denial
of a constitutional right. Slack v. McDaniel, 529
U.S. 473, 484 (2000). When the court has denied a § 2255
motion on the merits, the movant must show that reasonable
jurists would find the court's decision on the merits to
be debatable or wrong. Id.; see also Allen v.
Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
the Court must determine whether a certificate of
appealability should issue based on the Court's denial
Saltzer's Rule 60(b)(6) motion on jurisdictional grounds
because it was, in fact, a thinly disguised second and
successive § 2255 motion. When a § 2255 motion is
denied procedurally, a certificate of appealability is
warranted only if reasonable jurists would debate whether the
court's procedural ruling was correct and the motion
states a valid claim of the denial of a constitutional right.
Slack, 529 U.S. at 484. Here, the Court has
carefully reviewed and considered the authorities and facts
that it relied upon in concluding that Saltzer's Rule
60(b)(6) motion was a disguised second and successive §
2255 motion over which the Court lacked jurisdiction. The
Court finds that a reasonable jurist could not debate the
Court's determination on the issue.
because the Court considered the merits of Saltzer's
putative Rule 60(b)(6) motion, it will do so here as well.
Like the procedural analysis discussed above, the Court must
determine if reasonable jurists would find the Court's
decision on the merits of the motion to be debatable or
wrong. Allen, 435 F.3d at 951. Having carefully
reviewed the authorities and facts relied upon in its denial
of Saltzer's motion on the merits, the Court concludes
that a reasonable jurist could not conclude that the outcome
of Saltzer's sentencing would have been different even if
all his allegations were true. As such, a reasonable jurist
could not conclude that Saltzer's motion presented
“extraordinary circumstances” justifying Rule
60(b)(6) relief. Accordingly, ORDER
1. A certificate of appealability WILL NOT