Summary
construing as a § 2255 petition defendant's post-conviction motion to dismiss indictment
Summary of this case from United States v. TeranOpinion
CASE NO. CR09-0427JLR
09-16-2016
UNITED STATES OF AMERICA, Plaintiff, v. MALEEK JAMES, Defendant.
ORDER ON MOTION TO DISMISS INDICTMENT
I. INTRODUCTION
Before the court is Defendant Maleek James's Motion to Dismiss Indictment Based Upon Government Misconduct. (Mot. (Dkt. # 447).) The court has reviewed Mr. James's motion, the United States of America's ("the Government") response (Resp. (Dkt. # 48)), relevant portions of the record, and the applicable law. For the reasons stated below, the court DENIES Mr. James's motion to obtain a new trial and REFERS the motion to the Ninth Circuit Court of Appeals for consideration of whether the Ninth // Circuit should issue a certificate allowing Mr. James to file a second or successive habeas motion under 28 U.S.C. § 2255(h).
II. BACKGROUND
On February 18, 2011, a jury convicted Mr. James of (1) conspiring to possess MDMA/ecstasy with intent to distribute; (2) aiding and abetting the possession of MDMA/ecstasy with intent to distribute; (3) conspiring to import MDMA/ecstasy; and (4) aiding and abetting the importation of MDMA/ecstasy. (Jury Verdict (Dkt. # 275).) The court sentenced Mr. James to 108 months in prison. (Judgment (Dkt. # 354).)
Mr. James timely appealed his conviction and sentence to the Ninth Circuit. (6/20/11 Notice of Appeal (Dkt. # 353).) The Ninth Circuit affirmed Mr. James's conviction and sentence. (10/12/12 Order (Dkt. # 387).) Mr. James also filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. James v. United States, No. C12-1917MJP (W.D. Wash. ) (Dkt. # 1). The court denied Mr. James's Section 2255 petition, id. (9/9/12 Order (Dkt. # 97)), and the Ninth Circuit affirmed the denial, id. (12/31/15 Mandate (Dkt. # 109)).
In May 2016, Mr. James filed two pro se motions with the court, seeking a new trial (Dkt. # 427) and discovery in a related case (Dkt. # 426), followed by several additional pro se motions in June 2016, in which he sought a new trial (Dkt. ## 430, 434), production of grand jury transcripts and documents (Dkt. ## 431, 435), and production of discovery (Dkt. ## 432, 436). The court denied all of the motions on August 15, 2016. (8/15/16 Orders (Dkt. ## 443, 444).) //
In his latest pro se motion, Mr. James alleges that his inability to access unredacted copies of his trial transcripts violates his Sixth Amendment right to receive a "trial transcript that was not redacted and sealed." (Mot. at 1.) He contends that the redacted transcripts unconstitutionally deny him information he would use to obtain a new trial, and that the redaction amounts to government misconduct. (Id.) Mr. James moves the court to hold an evidentiary hearing "to determine why the transcripts were redacted and sealed." (Id. at 2.) If the Government "cannot explain [at the evidentiary hearing] why the trial transcripts were altered, redacted, and sealed," Mr. James requests that the court dismiss the indictment in his case. (Id.)
Nearly four years ago, after the court issued a modified protective order (Mod. Protective Order (Dkt. # 398)), Mr. James was provided with copies of transcripts from his trial, which redacted identifying information for the Government's civilian witnesses (see id.; 1st Status Report (Dkt. # 399); 2d Status Report (Dkt. # 402)).
The Government opposes Mr. James's motion as "another attempt to challenge the validity of his conviction and sentence." (Resp. at 4.) The Government contends that Mr. James's motion should be construed as a motion for a new trial or a successive habeas petition. (Id.) Accordingly, the Government requests that the court deny the motion or refer it to the Ninth Circuit under Ninth Circuit Rule 22-3(a). (Id. at 4, 6.)
III. ANALYSIS
The court must liberally construe pro se pleadings. See Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In addition, a motion that is in substance a habeas petition should be treated as one. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (construing a pleading labeled as a Rule 60(b) motion as a habeas petition because the motion contained a "claim"). Thus, a motion filed in the sentencing court and substantively within the scope of 28 U.S.C. § 2255 is a motion under Section 2255, regardless of how the prisoner captions the application. United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (citing Gonzalez, 545 U.S. at 531). Therefore, even though Mr. James labels his filing a motion to dismiss an indictment, the court construes Mr. James's motion as a Federal Rule of Criminal Procedure 33(b) motion to obtain a new trial and a successive Section 2255 petition to vacate, set aside, or correct his sentence.
Section 2255 states in relevant part that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255.
Rule of Criminal Procedure 12(b) governs pretrial motions, including a motion to dismiss an indictment. See Fed. R. Crim. P. 12(b). Mr. James was convicted in February 2011. (Jury Verdict.) Therefore, Mr. James is well past the pretrial stage of his criminal case.
A. Motion for a New Trial
Mr. James argues that his inability to access unredacted transcripts unconstitutionally denies him information he would use to obtain a new trial. (Mot. at 1.) A defendant seeking a new trial "grounded on newly discovered evidence" must file a motion to that effect "within three years after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(1). A defendant seeking a new trial "grounded on any other reason" must file a motion "within 14 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2). Whether Mr. James contends that the information of the Government's civilian witnesses amounts to "newly discovered evidence" or brings his motion for "any other reason," his present motion is untimely because he filed it well over five years after a jury found him guilty. (See Jury Verdict.) The court therefore denies Mr. James's motion to the extent he seeks a new trial.
B. Successive 28 U.S.C. § 2255 Petition
Mr. James also asks the court to dismiss the indictment in his case, which the court construes as a 28 U.S.C. § 2255 motion to vacate Mr. James's conviction. See Buenrostro, 638 F.3d at 722. A Section 2255 motion is a "second or successive" petition if a prior Section 2255 motion was adjudicated on the merits. See Green v. White, 223 F.3d 1001, 1002 n.1 (9th Cir. 2000). As noted above, the court denied Mr. James's first Section 2255 motion on the merits on September 9, 2012, James, No. C12-1917MJP (9/9/2012 Order), and the Ninth Circuit affirmed the denial, id. (12/31/15 Mandate). Therefore, Mr. James's current motion is a successive Section 2255 petition.
In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court limited a court's ability to unilaterally recharacterize a pro se prisoner's motion as his first Section 2255 application. Id. at 383. Here, the court does not need to warn Mr. James of any consequences from the court's characterizing his motion because Mr. James has already filed a motion under Section 2255. See id.; James, No. C12-1917MJP (9/9/2012 Order). --------
However, the court has no jurisdiction to rule on Mr. James's successive Section 2255 motion because the Ninth Circuit Court of Appeals has not certified that the provisions of 28 U.S.C. § 2255(h) have been met. See United States v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009). Under Ninth Circuit Rule 22-3(a), "[i]f a second or successive . . . motion, or application for leave to file such a . . . motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Ninth Circuit Rule 22-3(a). Accordingly, the court may not consider Mr. James's filing at this time insofar as he seeks relief from his conviction and must instead refer his filing to the Ninth Circuit Court of Appeals.
IV. CONCLUSION
For the foregoing reasons, the court DENIES Mr. James's motion for a new trial and DIRECTS the clerk to refer Mr. James's Motion to Dismiss Indictment Based Upon Government Misconduct (Dkt. # 447) to the Ninth Circuit for further proceedings as a successive 28 U.S.C. § 2255 petition. The court advises Mr. James that this referral alone does not constitute compliance with Ninth Circuit Rule 22-3 or 28 U.S.C. § 2255(h). Mr. James must file a motion for leave to proceed in the Ninth Circuit Court of Appeals and make the required showing. Finally, the court DIRECTs the Clerk to send a copy of this order to Mr. James.
Dated this 16th day of September, 2016.
/s/_________
JAMES L. ROBART
United States District Judge