Opinion
Crim. A. No. 91-0254 (SRC).
July 22, 2008
ORDER
This matter having come before the Court on the following motions filed by pro se Petitioner Eduardo Mantilla: (1) a motion to reopen the time to file an appeal from the Court's Order dated November 9, 2005 [docket item 25]; (2) a motion for the production of grand jury testimony [docket item 26]; (3) an application for writ of audita querela [docket item 27]; (4) an application to review and correct a certain matter in the process of trial [docket item 28]; (5) a second motion to reduce sentence based on retroactive guideline amendments [docket item 29]; a motion for leave to amend the petition for writ of audita querela [docket item 48]; as well as pro se Petitioner Robert Jonas' motion to join in Mantilla's motions and applications [docket item 35]; and Petitioners' joint motion for reconsideration of the Court's Order dated November 9, 2005, disposing of their previous motion for relief pursuant to 28 U.S.C. § 2255 [docket item 36]; and the Court having considered the parties' written submissions in support of and in opposition to the motions; and for the reasons expressed in the Opinion filed herewith; and for good cause shown,
IT IS on this 21st day of July 2008,
ORDERED that pro se Petitioner Robert Jonas' motion to join in Mantilla's motion to reopen the time to file an appeal from the Court's Order dated November 9, 2005 [docket item 35] is DENIED; and it is further
ORDERED that Jonas' motion to join in Mantilla's remaining motions and applications [docket item 35] is GRANTED; and it is further
ORDERED that Mantilla's motion to reopen the time to file an appeal from the Court's Order dated November 9, 2005 [docket item 25] is DENIED; and it is further
ORDERED that Petitioners' motion for the production of grand jury testimony [docket item 26] is DENIED; and it is further
ORDERED that Petitioners' motion for leave to amend the petition for writ of audita querela [docket item 48] is GRANTED; and it is further
ORDERED that Petitioners' application for writ of audita querela [docket item 27] is DENIED; and it is further
ORDERED that Petitioners' application to review and correct a certain matter in the process of trial [docket item 28] is DENIED; and it is further
ORDERED that Petitioners' second motion to reduce sentence based on retroactive guideline amendments [docket item 29] is DENIED; and it is further
ORDERED this case is closed.
OPINION
This matter comes before the Court on the following motions filed by pro se Petitioner Eduardo Mantilla: (1) a motion to reopen the time to file an appeal from the Court's Order dated November 9, 2005 [docket item 25]; (2) a motion for the production of grand jury testimony [docket item 26]; (3) an application for writ of audita querela [docket item 27]; (4) an application to review and correct a certain matter in the process of trial [docket item 28]; and (5) a second motion to reduce sentence based on retroactive guideline amendments [docket item 29]. Pro se Petitioner Robert Jonas filed a motion to join in Mantilla's motions and applications [docket item 35], and Petitioners Jonas and Mantilla have also filed a joint motion for reconsideration of the Court's Order dated November 9, 2005, denying their previous motion for relief pursuant to 28 U.S.C. § 2255 [docket item 36]. The government has filed opposition to the motions, after which Mantilla submitted a motion for leave to amend his petition for writ of audita querela, asking the Court to consider Kessack v. United States, Docket No. C05-1828Z, 2008 WL 189679 (W.D.Wash. January 18, 2008) [docket item 48].
I. Background
On June 19, 1992, a jury found co-defendants Mantilla and Jonas guilty of all counts of a three-count indictment: (1) conspiring to import at least 4,500 kilograms of cocaine and at least 14,000 pounds of marijuana into the United States from Columbia; (2) conspiring to distribute and possess with intent to distribute at least 2,159 kilograms of cocaine in violation of 21 U.S.C. § 846; and (3) conspiring to distribute 7,000 pounds of marijuana, also in violation of 21 U.S.C. § 846.
On October 23, 1992, the Court sentenced Jonas and Mantilla each to three concurrent terms of life imprisonment. Both defendants appealed, and their convictions and sentences were affirmed on June 29, 1993. U.S. v Mantilla, Docket No. 92-5612 and U.S. v. Jonas, Docket No. 92-5617, both at 998 F.2d 1006 (3d Cir. 1993). Mantilla petitioned for writ of certiorari, which the Supreme Court denied on November 29, 1993. Mantilla v. U.S., Docket No. 93-6529, 510 U.S. 1002 (1993).
On April 21, 1997, the Court resentenced Mantilla in light of the retroactive application of Amendment 505 to the sentencing guidelines, however, Mantilla was again sentenced to life imprisonment. On June 17, 1998, the Third Circuit again affirmed his sentence. U.S. v. Mantilla, Docket No. 97-5278, 162 F.3d 1152 (3d Cir. 1993). Jonas also filed a motion for resentencing pursuant to Amendment 505 to the sentencing guidelines. On May 28, 1997, the Court resentenced Jonas to life imprisonment.
Mantilla and Jonas filed their first motion pursuant to Section 2255 on March 14, 1997, raising eight claims. In an unpublished opinion filed on August 5, 1998, the Court denied the petition without issuing a certificate of appealability. Docket No. 97-1219, docket item 30. On December 30, 1998, the Third Circuit denied Petitioners' request for a certificate of appealability. Docket No. 98-6303.
On August 16, 1999, Mantilla filed a second petition to vacate his sentence pursuant to Section 2255. In an unpublished opinion filed June 20, 2001, the Court dismissed the matter because it lacked jurisdiction. On April 23, 2002, the Third Circuit again denied Mantilla's request for a certificate of appealability. Docket No. 01-2968.
On February 1, 2005, and February 12, 2005, Mantilla moved for a reduction in sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. In further filings dated March 23, 2005, and March 28, 2005, Mantilla moved for a reduction in sentence relying on a retroactive amendment — Amendment 591 — to the Sentencing Guidelines. On November 9, 2005, the Court issued a memorandum and order finding that "to the extent that . . . defendant relie[d] upon Apprendi [v. New Jersey, 530 N.J. 466 (2000)], Blakely [v. Washington, 124 S.Ct. 2531 (2004)], and [United States v.] Booker, [ 125 S.Ct. 738 (2005) Mantilla's] Rule 35(a) claim is a successive Section 2255 motion" mischaracterized as a motion pursuant to Rule 35. (Docket item 22 at 4). The Court also found the motion untimely, and held that the retroactive amendment did not apply.
II. Discussion
A. Jonas' Motion to Join
Jonas has moved to join in each of the motions filed by Mantilla. The government has only opposed his motion to join the motion to reopen the order of the Court dated November 9, 2005, which pertains to an application made only by Mantilla.
The government is correct that Jonas has no standing to join the motion to reopen an order that applies only to Mantilla; therefore, his request to join in this motion is therefore denied. However, the government has not opposed Jonas' motion to join in the remaining motions and applications filed by Mantilla. Because Jonas appears to have standing to raise the issues presented in each of the remaining motions and applications, the Court shall grant Jonas' motion to join the remaining motions and applications.
B. Mantilla's Motion to Reopen Time to Appeal
On April 17, 2006, Mantilla filed a motion pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure to reopen the time to file an appeal from the Court's order dated November 9, 2005, on the basis that he did not receive a copy of the order until April 5, 2006. The government does not oppose the motion.
Rule 4(a)(6) provides that:
The district court may reopen the time to file an appeal for a period of 14 days . . . but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
(Emphasis added.)
The government states that it cannot prove that Mantilla did not receive timely notice of the Court's order, therefore it does not oppose the motion. Accordingly, without any argument to the contrary, and for the purpose of deciding this motion, the Court will rely on the date of receipt provided by Mantilla: April 5, 2006. However, although April 5, 2006 is more than 21 days after the date of entry of the order Mantilla seeks to appeal, therefore fulfilling the first requirement of Rule 4(a)(6), Mantilla has not met the second requirement because Mantilla waited twelve days from the date he contends he received notice of the order to file this motion. Therefore, the Court cannot reopen the time to file an appeal.
B. Motion for the production of grand jury transcripts
On February 7, 2007, Mantilla filed a motion for production of the transcripts of the grand jury testimony of the witnesses the government later called to testify at trial. In support of his request, Mantilla argues that he needs the grand jury transcripts because "this is a multicount, multi-defendant conspiracy case, carrying with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants." (Br. in Support of Motion for Production at 2 [docket item 26]). Mantilla further argues the transcripts are necessary because "the question of guilt or innocence may turn on exactly what was said." ( Id.)
The government opposes the motion, arguing that: (1) to comply with the Jenks Act, 18 U.S.C. § 3500, the transcripts "would have been disclosed to the defendant before or during trial"; (2) Mantilla has not demonstrated a particular need for the transcripts; (3) Mantilla has not presented a viable motion that would allow the Court to revisit the question of his guilt or innocence; and (4) it is "doubtful that such transcripts still exist." (Gov't Br. at 4-5). In Petitioners' reply, they contend the government has never provided them any transcripts of the grand jury testimony.
Although the reply brief is signed only by Mantilla, it states that Petitioners Jonas and Mantilla issue the arguments. Because the Court has granted Jonas' motion to join in this motion, the Court refers to Jonas and Mantilla collectively as "Petitioners."
Petitioners' reliance on Dennis v. United States, 384 U.S. 855 (1966) in support of this motion is misplaced. In Dennis, the Supreme Court addressed a case on direct appeal in which the petitioners challenged the trial court's denial of their motions, filed at the time of trial, for production or in camera inspection of the grand jury testimony. Id. at 868. That is not the case here. Petitioners have not asserted that they moved for production of the transcripts at trial, nor are they challenging the decision of the trial court regarding any such motion. Indeed, in the brief in support of the motion Petitioners do not argue they did not have access to the transcripts at the time of trial. Petitioners only make this allegation in their reply to the government's opposition to the motion.
Furthermore, Petitioners have not provided a basis pursuant Rule 6(e)(3)(E) of the Federal Rules of Criminal Procedure to authorize disclosure of the grand jury transcripts. Rule 6(e)(3)(E) provides that a court "may authorize disclosure . . . of a grand-jury matter," at the request of the government, or at the request of a defendant "preliminarily to or in connection with a judicial proceeding" or upon a showing "that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed.R.Civ.P. 6(e)(3)(E). Here, Petitioners simply ask the Court to make the records available to them now, seventeen years after the trial and their conviction, apparently to review the grand jury transcripts to see if they can find any basis to challenge their sentence or conviction. They have not made any showing "that a ground may exist to dismiss the indictment," nor have they articulated any judicial proceeding to which the testimony relates. Therefore, there is no basis to release the records pursuant to Rule 6(e)(3)(E).
Moreover, Title 28, Section 2255(h) of the United States Code provides that "[a] second or successive motion must be certified . . . by a panel of the appropriate court of appeals to contain . . . newly discovered evidence" that establishes the petitioner's innocence, or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h). Petitioners have not indicated that they obtained certification from the Third Circuit to file a second 2255 motion based on any information that may be contained in the grand jury transcripts, nor have the Petitioners identified any newly discovered evidence or new rule of constitutional law relevant to their conviction.
Therefore, because there is no basis to release the grand jury testimony, the Court must deny Petitioners' motion.
C. Petition for writ of audita querela and Motion for leave to amend the petition
On February 15, 2007, Mantilla filed a petition for writ of audita querela, pursuant to 28 U.S.C. § 1651, arguing "the government violated Petitioner's Fifth and Sixth Amendment rights by using drug quantity to increase his statutory maximum penalty even though the jury made no specific finding as to the quantity of the drugs involved in the conspiracy[.]" (Br. in support of writ at 2-3 [docket item 27]). The government opposes the motion, contending it is actually a successive Section 2255 motion and Petitioners have not obtained an order from the Third Circuit to file the motion.
On June 16, 2008, Petitioners filed a motion for leave to amend the petition for writ of audita querela, asking the Court to consider Kessack v. United States, 2008 WL 189679 (W.D. Wash. January 18, 2008). The Court grants the motion to amend the petition and considers Kessack in deciding the motion for writ of audita querela.
"The common law writ of audita querela permitted a defendant to obtain 'relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment.'" U.S. v. Ayala, 894 F.2d 425, 427 (quoting 11 C. Wright A. Miller, Federal Practice and Procedure § 2867, at 235 (1973)). "The only circumstance, if any, in which the writ [of audita querela] could furnish a basis for vacating a criminal conviction would be if the defendant raised a legal objection not cognizable under the existing scheme of federal postconviction remedies." Id. at 426. See e.g. U.S. v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (finding that only in "the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie"); U.S. v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (finding that "a federal prisoner may not challenge a conviction or sentence by way of a petition for a writ of audita querela when that challenge is cognizable under § 2255") ; U.S. v. Holder, 936 F.2d 1, 5 (1st Cir. 1991) (finding that "if available at all, the writ of audita querela can only be available where there is a legal objection to a conviction, which has arisen subsequent to that conviction, and which is not redressable pursuant to another post-conviction remedy).
Although Mantilla framed the motion with this theory in mind, the form of relief Petitioners are seeking, if available under the facts of this case, could be afforded pursuant to Section 2255. Section 2255 provides a means by which prisoners may challenge their sentence based on an argument that it "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
Petitioners' argument is that the government violated their "Fifth and Sixth Amendment rights by using drug quantity to increase his statutory maximum penalty even though the jury made no specific finding as to the quantity of the drugs involved in the conspiracy." This falls squarely within the grounds for which a prisoner may challenge his sentence pursuant to Section 2255.
"Before a second or successive § 2255 motion may be filed in the district court, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the motion." In re Olabode, 325 F.3d 166, 169 (3d Cir. 2003) (citing 28 U.S.C. §§ 2244(b)(3)(A), 2255). As discussed above, authorization may only be granted if the motion contains: "(1) newly discovered evidence that . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255. Although Petitioners contend this relief was not available at the time of their sentencing, neither Mantilla nor Jonas have obtained certification from the Third Circuit to file a second 2255 motion. Therefore, the Court must deny the motion.
Additionally, to the extent Petitioners seek to argue that the relief they seek is not available pursuant to Section 2255 because Apprendi v. New Jersey, 530 N.J. 466 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and/or United States v. Booker, 125 S.Ct. 738 (2005), do not apply retroactively on habeas review, the Court cannot grant such relief. In Schriro v. Summerlin, 542 U.S. 348, (2004), the Supreme Court "held that Ring [ v. Arizona, 536 U.S. 584 (2002)] (and a fortiori Apprendi) does not apply retroactively on habeas review." Blakely, 542 U.S. at 323-24 (O'Connor, J., dissenting). Likewise, the Third Circuit has held that "[b]ecause Booker announced a rule that is 'new' and 'procedural,' but not 'watershed,' Booker does not apply retroactively to initial motions under § 2255 where the judgment was final as of January 12, 2005, the date Booker issued." Lloyd v. U.S., 407 F.3d 608, 615-16 (3d Cir. 2005). Accordingly, because the Supreme Court and Third Circuit have held that Apprendi and Booker do not apply retroactively, this Court cannot find otherwise, whether pursuant to Section 2255 or on a writ of audita querela.
The government correctly notes in its brief that because Petitioners challenge their sentences issued pursuant to the United States Sentencing Guidelines, their claims are actually pursuant to Booker, not Blakely.
The holding in Kessack v. United States, does not change the outcome of this case. In Kessack, the court noted that the Ninth Circuit in Carrington v. United States, 503 F.3d 888 (9th Cir. 2007), rejected the claim that "the writ of audita querela remains available because Booker is not retroactive." Kessack, 2008 WL 189679, at *5. However, the Kessack court granted the petition for writ of audita querela because it found that "truly extraordinary circumstances and equities . . . distinguish[ed] Mr. Kessack from other defendants sentenced prior to Booker." Id. Specifically, although Mr. Kessack was convicted along with six co-defendants, "[a]fter all appeals and re-sentencing, Mr. Kessack [was] subject to a sentence of at least 20 years greater than any co-defendant." The court found that this was "an extreme disparity of sentence" and that Mr. Kessack was, "under the circumstances, uniquely impacted by the Guideline calculations." Id. Because "[r]e-sentencing [was] necessary to 'avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,'" and because "re-sentencing . . . under the now-advisory federal Sentencing Guidelines [was] necessary to achieve fundamental justice," the court granted the petition for writ of audita querela and ordered that he be resentenced. Id.
Petitioners in this case have not demonstrated any extraordinary circumstances, nor have they demonstrated that they have been uniquely impacted by the sentence imposed under the Guidelines. Therefore, Petitioners' motion for writ of audita querela is denied.
D. Application to review and correct a certain matter in the process of trial
On August 29, 2007, Mantilla filed a petition pursuant to the All Writs Act, 28 U.S.C. § 1651, to "review and correct" certain jury instructions. Mantilla argues "the element of type and quantity charge in the indictment was taken from the jury, thus directing the verdict in favor of the government." (Br. in support of petition [docket item 28] at 1). The government opposes the petition, asserting it is an argument under Booker, and therefore a successive motion pursuant to Section 2255.
The government is correct. Although Petitioners do not point to Booker in either their moving brief or reply brief, they are arguing that the jury should have been charged to determine factors determined by the judge in sentencing. In Booker, the Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S., at 244. Therefore, the Court finds the petition is indeed an motion for relief pursuant to the rule of law announced in Booker. For the reasons addressed in the preceding section of this Opinion, the motion must be denied as a second motion pursuant to Section 2255.
E. Second motion to reduce sentence based on retroactive guideline amendments
On October 2, 2007, Mantilla filed a second motion pursuant to 18 U.S.C. § 3582(c)(2), asking the Court to modify his sentence under Amendment 505 to the Sentencing Guidelines. Mantilla asks the Court to resentence him, giving consideration to his lack of prior criminal history, his age and medical problems, and sentences imposed on other defendants in other cases. The government opposes, arguing Amendment 505 took effect before Mantilla and Jonas were resentenced in 1997 and the Court considered the amendment at that time.
Title 28, Section 3582 of the United States Code provides that a court may reduce a sentence: (1) "upon motion of the Director of the Bureau of Prisons"; (2) as "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"; and (3) "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission[.]" (Emphasis added). None of which apply to the facts of this case.
Amendment 505 took effect on November 1, 1994, and was made retroactive on November 1, 1995, well before Mantilla and Jonas were resentenced in 1997. Indeed, Mantilla acknowledges in his brief that on April 21, 1997, the Court granted his initial motion to reduce his sentence pursuant to Amendment 505. (Df. Br. in support of Second 3582 motion [docket item 29] at 2, ¶ 5). Therefore, Amendment 505 did not "subsequently lower" Mantilla's or Jonas' sentences.
To the extent Petitioners seek to argue that the holding in Booker, Apprendi and Blakely modified the requirements set forth in 18 U.S.C. § 3582(c)(2), the Court notes that the Third Circuit does not agree:
Some may argue that, because the Guidelines are no longer mandatory, defendants need not wait [for a modification to the guidelines by the Sentencing Commission] to apply for relief under § 3582(c)(2). That fundamentally misunderstands the limits of Booker. Nothing in that decision purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines.United States v. Wise, 515 F.3d 207, 221 n. 11 (3d Cir. 2008) (quoting United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995)). The same holds true with respect to Apprendi and Blakely. The holding in Wise makes clear that 18 U.S.C. § 3582(c)(2) authorizes a court to reduce a sentence only when the Sentencing Commission has lowered the applicable guideline range and included the amendment in the list set forth at U.S.S.G. § 1B1.10(c). Id. That is not the case here.
Accordingly, because Petitioners have not "been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission," the Court must deny their motion for reduction in sentence pursuant to Section 3582.
F. Rule 60(b) Motion
On November 7, 2007, Petitioners filed a joint motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, arguing that they are entitled to post-conviction relief based on alleged violations of their right to a speedy trial and effective assistance of counsel. Petitioners contend that, although they previously filed a Section 2255 claim, the court did not reach the merits of their argument and therefore, their "failure to raise the issue at trial or on direct appeal [does] not bar them from presenting the Speedy Trial Act claim in a subsequent § 2255 motion." (Br. in support of 60(b) motion [docket item 32]). Petitioners also argue that "failure to assert the right to a Speedy Trial is not an absolute bar to a subsequent speedy trial claim." The government opposes, asserting Petitioners raised these arguments in their previous Section 2255 motion.
"Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Here, Petitioners file their motion pursuant to Rule 60(b) 4, 5, and 6, which allows a court to grant relief where: "(4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief." Fe. R. Civ. P. 60(b).
First, the Court notes that Petitioners' reliance on the Supreme Court's holding in Gonzalez is misplaced. In Gonzales, the Supreme Court explicitly limited its consideration to Section 2254 cases, explaining it "consider[ed] only the extent to which Rule 60(b) applies to habeas proceedings under 28 U.S.C. § 2254, which governs federal habeas relief for prisoners convicted in state court . . . [and a]lthough . . . § 2255 is similar to, and refers to, the statutory subsection applicable to second or successive § 2254 petitions, it is not identical." Id. at 530, n. 3. However, the Third Circuit reached a similar conclusion in Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004), in which it held that:
in those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition.See also U.S. v. Enigwe, 142 Fed.Appx. 642, 642-43 (3d Cir. 2005) (finding the federal prisoner's motion pursuant to Rule 60(b) actually challenged the underlying conviction, and should have been construed as a § 2255 proceeding, reasoning that if the petitioner succeeded on his claim, his sentence would have been vacated).
In this motion, Petitioners raise primarily the same arguments presented in their previous habeas petition. Although they couch the argument in language that attempts to "attack the manner in which the earlier habeas judgment was procured," see Pridgen, 380 F.3d at 727, they actually argue that they suffered ineffective assistance of counsel and that they were "brought to trial in violation of their constitutional and statutory right to a speedy trial." (Petitioners' Br. at 5), In this argument, Petitioners are attacking the underlying conviction. This claim is properly raised under Section 2255.
Petitioners also contend Judge Lifland "ignored the fact that Petitioners . . . were represented by their attorneys at trial and on appeal." (Br. in support of 60(b) at 6). However, in the August 5, 1998 Memorandum and Order, Judge Lifland specifically addressed Petitioners' argument that their Speedy Trial Act violation claims were not presented in prior proceedings due to ineffective assistance of counsel. Docket No. 97-1219, at 2, 5-6. Indeed, the judge "assum[ed] without deciding that Petitioners' counsel was ineffective, thus providing cause for failure to raise the speedy trial claim." (Id. at 5). Judge Lifland then reviewed the whether Plaintiffs suffered "actual prejudice," as required by United States v. Frady, 456 U.S. 152, 167-8 (1982). Therefore, Judge Lifland did address this argument, and to the extent Petitioners seek to argue, for the second time, in this motion that they suffered ineffective assistance of counsel, the proper forum for such a claim is a Section 2255 proceeding.
Therefore, although titled as a motion pursuant to Rule 60(b), the motion must be construed as a successive habeas motion. As discussed above, in order to file a second or successive motion pursuant to Section 2255, Petitioners must obtain an order from the Third Circuit authorizing such a motion. 28 U.S.C. § 2255; In re Olabode, 325 F.3d at 169. Because Petitioners have not submitted any such order, the Court cannot consider this second motion pursuant to Section 2255. Accordingly, the motion must be denied.
III. Conclusion
For the reasons set forth above, the Court grants Jonas' motion to join Mantilla's motions and applications, except for the motion to reopen the time to file an appeal from the Court's order dated November 9, 2005; grants Petitioners' motion to amend the petition for writ of audita querela; and denies all other motions.