Bahna v. USA, No. 2:2008cv01249 - Document 51 (C.D. Cal. 2010)
Court Description: ORDER DENYING RULE 60(B) MOTION by Judge Audrey B. Collins denying 41 Motion for Rule 60(b) Motion to Vacate Order Denying Section 2255 Motion: For the foregoing reasons, Defendant's Rule 60(b) Motion is DENIED. (see document for further details). (bm)
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Bahna v. USA Doc. 51 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 CASE NO.: CV 08-1249 ABC CR 05-982 ABC Plaintiff, 13 v. ORDER DENYING RULE 60(B) MOTION 14 15 MAMDOUH S. BAHNA, Defendant. 16 17 18 Pending before the Court is Mamdouh Bahna’s (“Defendant”) Rule 19 60(b) Motion to Vacate Order Denying Section 2255 Motion (“Motion”), 20 filed on August 30, 2010 (docket no. 41.) 21 Opposition on October 4, 2010 (docket no. 418, case no. 05-982), and 22 Defendant filed a Reply on October 25, 2010 (docket no. 50). 23 Court finds this Motion appropriate for resolution without oral 24 argument. 25 considered the materials submitted by the parties and the case file, 26 the Court DENIES Defendant’s Motion. The Government filed an See Fed. R. Civ. P. 78(b); Local Rule 7-15. The Having 27 28 Dockets.Justia.com 1 2 I. BACKGROUND The background of this case is set out at length in the 3 Government’s Opposition. (See Opp’n pp. 1-11.) In brief, Defendant 4 was sentenced to 58 months imprisonment after pleading guilty to one 5 count of health care fraud. 6 under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence in 7 which he argued that his former counsel Terry Bird and Jason Kogan 8 provided ineffective assistance because they did not sufficiently 9 inform him of the consequences of his plea. Thereafter, Defendant filed a motion Specifically, Defendant 10 claimed that his former counsel did not inform him that he could be 11 sentenced to prison for more than 18 months and that he was waiving 12 his right to appeal any sentence of less than 87 months. 13 The Court conducted an evidentiary hearing on the § 2255 motion 14 on November 12, 2008, in which Defendant, his wife Hanny, and his 15 former counsel, among others, testified. 16 Court entered a 29-page Order denying Defendant’s § 2255 motion. 17 Therein, the Court found “wholly incredible” Defendant’s testimony 18 attributing various failures to his attorneys and claiming he did not 19 know what he was getting into when he signed his plea agreement. 20 Court also found Hanny Bahna’s testimony not credible. 21 find the testimony of Mr. Bird and Mr. Kogan to be credible. 22 testified to the effect that Defendant participated intelligently in 23 the plea process. 24 assistance Defendant received in connection with his decision to 25 accept the plea. 26 test and concluded that Defendant’s ineffective assistance claim 27 failed because he could not show that his counsel’s performance fell 28 below an objective standard of reasonableness. On February 11, 2009, the The The Court did They The Court also summarized the facts showing the Finally, the Court applied the two-part Strickland 2 The Court also found 1 that Defendant’s decision to plead guilty was the result of a 2 voluntary and intelligent choice among available alternatives, and 3 rejected Defendant’s assertion that his counsel’s efforts to advise 4 him were futile because of his alleged impairments stemming from his 5 health problems. 6 Now before the Court is Defendant’s Rule 60(b) Motion. Therein, 7 Defendant argues that the Court’s February 11, 2009 Order denying his 8 § 2255 motion should be vacated on several grounds. 9 asserts that the Order was the result of a fraud upon the Court. First, Defendant 10 Defendant contends that someone – whether the Court, the court 11 reporter, counsel, or all of them is not clear – redacted the 12 transcript, and as a result three portions of Defendant’s testimony 13 are missing from the transcript. 14 determination that Mr. Bird and Mr. Kogan were credible, stating the 15 Court was biased in their favor and that the decision was erroneous. 16 Third, Defendant states that his post-assistance counsel, Victor 17 Sherman, provided ineffective assistance in connection with his § 2255 18 motion. Second, Defendant faults the Court’s 19 20 21 II. DISCUSSION To prevail on a motion for relief from judgment brought under 22 Rule 60(b), the moving party must show (1) mistake, surprise, or 23 excusable neglect; (2) newly discovered evidence; (3) fraud or other 24 misconduct; (4) a void judgment; (5) a satisfied or discharged 25 judgment; or (6) any other reason justifying relief from operation of 26 the judgment. 27 28 See Fed. R. Civ. P. 60(b). Defendant here appears to be moving on the basis of Rule 60(b)(3), or, alternatively, Rule 60(b)(6). 3 “To prevail [on a Rule 1 60(b)(3) motion], the moving party must prove by clear and convincing 2 evidence that the [judgment] was obtained through fraud, 3 misrepresentation, or other misconduct[.]” 4 362 F.3d 1254, 1260 (9th Cir.), cert. denied, 543 U.S. 870, 125 S.Ct. 5 108 (2004). 6 “extraordinary circumstances.” 7 125 S.Ct. 2641, 2650 (2005) (internal quotation marks omitted); Phelps 8 v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009), cert. denied, 130 9 S.Ct. 1072 (2010). 10 A. Casey v. Albertson’s Inc., Relief under Rule 60(b)(6) requires a finding of Gonzalez v. Crosby, 545 U.S. 524, 536, 11 Neither Defendant’s Attack on the Court’s Credibility Findings, Nor his Claim that Post-Conviction Counsel Was Ineffective, Are Cognizable Under Rule 60(b). 12 Before addressing the merits of Defendant’s Rule 60(b) Motion, 13 the Court must determine whether his claims are cognizable. 14 60(b) applies in habeas proceedings only to the extent that it is not 15 inconsistent with applicable federal habeas statutes and rules. 16 Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). 17 alternative to review by appeal; nor can it be used to circumvent the 18 limitations on successive habeas petitions or the rules governing the 19 appeal of § 2255 orders. 20 appeal § 2254 orders and holding that Rule 60(b) motions cannot 21 circumvent the “second or successive” habeas petition requirements of 22 the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)); 23 see also Phelps v. Alameda, 569 F.3d 1120 (9th Cir. 2009) (discussing 24 Gonzalez in reference to Rule 60(b) motions regarding habeas orders 25 generally); United States v. Pedraza, 214 Fed.Appx. 853 (10th Cir. 26 2007) (motion for relief from judgment denying § 2255 motion construed 27 as a successive § 2255 motion). 28 Rule Rule 60(b) is not an Id. at 531-532 (discussing Rule 60(b) to In Gonalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court 4 1 addressed how to distinguish between cognizable Rule 60(b) motions 2 that the district court can adjudicate, and those that are in essence 3 successive habeas petitions for which pre-filing authorization is 4 required. 5 enough to a “habeas corpus petition” to require it to be consistent 6 with the AEDPA. 7 how to make the “relatively simple” determination of whether a Rule 8 60(b) motion advances one or more “claims”: A Rule 60(b) motion that contains “claims” is similar Gonzalez, 545 U.S. at 521. The Court then explained 9 10 A motion can also be said to bring a ‘claim’ if it attacks the 11 federal court’s previous resolution of a claim on the merits, 12 since alleging that the court erred in denying habeas relief 13 on the merits is effectively indistinguishable from alleging 14 that the movant is, under the substantive provisions of the 15 statutes, entitled to habeas relief. 16 however, when a Rule 60(b) motion attacks, not the substance 17 of the federal court’s resolution of a claim on the merits, 18 but some defect in the integrity of the federal habeas 19 proceedings . . . Fraud on the federal habeas court is one 20 example of such a defect. [By contrast,] an attack based on 21 the movant’s own conduct, or his habeas counsel’s omissions . 22 . 23 proceedings, but in effect asks for a second chance to have 24 the merits determined favorably. . ordinarily does not go to That is not the case, the integrity of the 25 26 Id. at 532 and fn. 5 (citations omitted, emphasis added). 27 28 Here, Defendant’s assertion that the transcript was tampered with 5 1 states a “fraud on the court” and goes to the integrity of the federal 2 habeas proceeding. 3 basis for Defendant’s Rule 60(b) Motion. 4 merits of this basis below. 5 As such, this assertion provides a cognizable The Court will address the Defendant’s finding fault with the Court’s credibility 6 determinations, however, does not go to the integrity of the habeas 7 proceeding. 8 resolution on the merits of his § 2255 motion. 9 attempt to re-litigate the merits of that motion. Rather, it is an attack on the Court’s previous As such, it is an Similarly, under 10 Gonzalez, Defendant’s assertion that his post-conviction counsel gave 11 him ineffective assistance in connection with his § 2255 motion does 12 not go to the integrity of the habeas proceedings but, in effect, asks 13 for a second chance to have the merits determined favorably.1 14 Accordingly, under Gonzales, neither Defendant’s attack on the 15 Court’s credibility findings nor his assertion that post-conviction 16 counsel gave him ineffective assistance provides a cognizable basis 17 for a Rule 60(b) motion. 18 to be litigated in accordance with the AEDPA. 19 request for relief on their basis is DENIED. 20 B. Rather, these are in effect habeas “claims” As such, Defendant’s The Alleged Alterations to the Transcript of the November 12, 2008 Hearing 21 1. 22 23 24 Defendant’s Motion Is Baseless Because There is No Evidence that the Transcript was Altered. Defendant contends that he is entitled to relief under Rule 60(b) because the transcript from the November 12, 2008 hearing on his § 25 1 26 27 28 This claim is not cognizable on the alternative ground that a defendant “cannot raise an ineffectiveness of counsel claim because he had no right to counsel on his collateral post-conviction 28 U.S.C. § 2255 petition.” U.S. v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990). 6 1 2255 motion was altered. In his Declaration, Defendant identifies 2 three of his responses that he says were so altered, see Bahna Decl. ¶ 3 14. 4 omissions. 5 statements as he alleges, the Court would have heard him do so and 6 would have considered those statements in deciding the motion. 7 importantly, the court reporter has reviewed her original stenographic 8 notes and has testified that the transcript conforms to the content of 9 her notes. The Court has reviewed the transcript and there appear to be no The Court also notes that had Defendant made the three More (See Stride Decl.) 10 As to one alleged instance of tampering, Defendant makes 11 inconsistent assertions as to what his missing testimony was. 12 declaration, Defendant states that his missing testimony was about his 13 email with another attorney for a second opinion about seeking an 14 adjustment to the restitution amount. 15 sentence” Defendant states that he testified, “I learned of Rule 16 11(d)(2)(B). 17 plea agreement, as I learned that it makes a big difference ‘when’ 18 withdrawing the plea. 19 sentence versus post-sentence. 20 Decl. 14(A).) 21 testified in the § 2255 hearing that his former counsel never told him 22 that he could withdraw his plea, and that he learned about this 23 possibility only after he was sentenced. 24 In his Then, “later on after my I was not informed about the option of withdrawing my There are two standards that apply to preThat is why we are here.” (Bahna Thus, in his declaration, Defendant asserts that he In the body of his Motion, however, Defendant asserts that his 25 missing testimony was that he had asked Terry Bird to withdraw his 26 guilty plea before sentencing under Fed. R. Crim. Pro. 11(d)(2)(B), 27 but that Mr. Bird did not do so. 28 submitted declarations from his wife Hanny Bahna and his son Michael (See Mot. 7:4-27.) 7 Defendant 1 2 Bahna stating that they heard him so testify. These accounts are in irreconcilable conflict: If Defendant did 3 not know about the possibility of withdrawing his guilty plea until 4 after he was sentenced (as Defendant’s declaration claims he 5 testified), then he could not have asked Mr. Bird to withdraw his 6 guilty plea prior to sentencing (as Defendant’s Motion and his 7 witnesses claim he testified). 8 assertions as to the content of his “missing” testimony render his 9 allegation of tampering incredible and his position untenable. 10 In short, Defendant’s contradictory Defendant also submitted an email exchange between himself and 11 Jeremy Boehmer, an investigator working for him on his case. 12 Defendant contends that one of Boehmer’s emails supports his position 13 because Boehmer stated, “I honestly believe I heard you stay something 14 about Rule 11(d)(2)(B) while you were testifying but I do not have 15 specific recollection of what was said.” 16 However, when read in its totality, Boehmer’s email shows that he was 17 fraught with doubt about providing a declaration saying what Defendant 18 wanted it to say. 19 honesty and integrity, and that despite struggling, he could not 20 remember or find where in the testimony any comment about Rule 21 11(d)(2)(B) would have been. 22 credence to Defendant’s position. 23 B. (Bahna Decl. Exh. 12.) Boehmer explained that he takes pride in his Thus, Boehmer’s email does not lend 24 In the Alternative, Defendant’s Allegedly-Missing Testimony Would Have Been Immaterial to the Court’s Ruling on his Section 2255 Motion. 25 Even had Defendant made the statements he contends were deleted, 26 that testimony would not have effected the Court’s ruling on the § 27 2255 motion. 28 content of his “missing” testimony concerning withdrawing his guilty First, that Defendant makes conflicting claims as to the 8 1 plea is enough to dispose of that portion of his Motion. But, in any 2 event, both versions of his alleged testimony are inconsistent with 3 the purported basis of his § 2255 motion. 4 § 2255 motion was that his attorneys gave him ineffective assistance 5 by leading him to believe that he would receive no more than about a 6 year of jail time; Defendant asserted that based on this belief, he 7 decided to plead guilty. 8 would not have wanted to withdraw his guilty plea, even had he known 9 he could do so, because his knowing choice to plead guilty was based The premise of Defendant’s If that is what happened, then Defendant 10 on his belief about what his sentence would be. 11 allegedly-missing testimony about withdrawing his plea would have had 12 no effect on the outcome of Defendant’s § 2255 motion; it would only 13 have served to further undermine his credibility. 14 As such, the Nor would the other two allegedly-missing portions of testimony 15 have had any effect on the outcome of the § 2255 motion. 16 statement “I was angry when I wrote that. God bless America” that 17 Defendant claims he made after apologizing for calling the government 18 evil (Bahna Decl. 14(B)), and his additional testimony detailing his 19 travel from Terminal Island to the MDC (Bahna Decl. 14(C)), would have 20 been completely irrelevant to whether he received ineffective 21 assistance, the sole issue raised in Defendant’s § 2255 motion. 22 The Because there is no factual basis for Defendant’s assertion that 23 the transcript of the November 12, 2008 hearing was redacted, and 24 because the allegedly-missing testimony was, in any event, either 25 incredible or irrelevant, Defendant cannot show “that the [judgment] 26 was obtained through fraud, misrepresentation, or other misconduct” or 27 that “extraordinary circumstances” warrant relief from the Court’s 28 February 11, 2009, Order. As such, Defendant has stated no basis for 9 1 relief under Fed. R. Civ. Pro. 60(b). His Motion is therefore DENIED. 2 3 4 5 III. CONCLUSION For the foregoing reasons, Defendant’s Rule 60(b) Motion is DENIED. 6 7 8 SO ORDERED. DATED: November 24, 2010 9 10 11 _______________________________ AUDREY B. COLLINS CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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