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Gamboa v. Kallis

United States District Court, C.D. Illinois, Peoria Division

July 31, 2019

MICHAEL GERALD GAMBOA, Petitioner,
v.
STEVE KALLIS, warden, Respondent.

          ORDER AND OPINION

          JAMES E. SHADID, UNITED STATES DISTRICT JUDGE

         Now before the Court is Petitioner Michael Gerald Gamboa's Motion for Reconsideration (Doc. [34]) and Motion for Resolution and/or Bifurcation and Certification of Claims for Appeal (Doc. [35]). For the following reasons, Gamboa's Motion for Reconsideration (Doc. [34]) is GRANTED, the Judgment is VACATED, and the Clerk is DIRECTED to enter an Amended Judgment DENYING the Petition. Gamboa's Motion for Resolution and/or Bifurcation and Certification of Claims for Appeal (Doc. [35]) is DENIED.

         I. BACKGROUND

         Gamboa brought this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) challenging the validity of his sentence imposed by the United States District Court for the District of North Dakota. While the background of Gamboa's criminal case is laid out in this Court's February 28, 2019 Order (Doc. 32), for convenience, the Court will restate the relevant background in this Order as well. In 2003, Gamboa was found guilty of conspiracy to possess with intent to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 846, as defined under 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2 (Count 1s), possession of methamphetamine with intent to distribute and aiding and abetting in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (Count 2s), simple possession of cocaine and aiding and abetting 21 U.S.C. § 844(a), 18 U.S.C. § 2 (Count 3s), using and carrying firearms during and in relation to a drug trafficking crime and aiding and abetting in violation of 18 U.S.C. § 924(a)(1)(A), 18 U.S.C. § 2 (Count 4s), possession of firearms in furtherance of a drug trafficking crime and aiding and abetting in violation of 18 U.S.C. § 924(a)(1)(A), 18 U.S.C. § 2 (Count 5s), possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 6s), and possession of firearms and ammunition by a fugitive from justice in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 7s). United States v. Gamboa, No. 3:02-cr-00047 (D.N.D.) (d/e 305); PSR at 1-2 (Doc. 13).

         Before trial, the Government filed a notice pursuant to 21 U.S.C. § 851(a), alleging that Gamboa had three prior convictions for felony drug offenses: (1) a conviction for a drug distribution conspiracy in violation of Minn. Stat. § 152.096, subd. 1, occurring between September 1994 and November 1995, involving cocaine, methamphetamine, and/or marijuana, entered on October 11, 1996, in Polk County District Court, Minnesota; (2) a conviction for a controlled substance offense in the 5th degree in violation of Minn. Stat. §§152.025, subds. 2(1) and 3(a), and 609.05 subd. 1, possession of a mixture containing cocaine occurring on or about September 13, 1995, entered on October 11, 1996, in Polk County District Court, Minnesota; and (3) a conviction for delivery of a controlled substance (marijuana) in violation of North Dakota Century Code, §§ 19-01.1- 05(5)(t), 19-03.1-23(1)(b), and 12.1-32-01(3), occurring on or about November 27, 1995, entered in Grand Forks County District Court, North Dakota, on October 23, 1996. See Resp. App. 3-4, Information filed in Criminal Case (Doc 11-1).

         At sentencing, Gamboa argued that his prior offenses should not count as separate predicate felony convictions. However, the “court made specific findings that the North Dakota conviction for the delivery of marijuana in Grand Forks County and the drug conspiracy conviction in Polk County, Minnesota, were both separate predicate felony convictions for the purpose of enhancing the sentences on Counts One and Two.” United States v. Gamboa, 439 F.3d 796, 813 (8th Cir. 2006).

         At the time of sentencing, in 2002, the finding that Gamboa had “two or more prior convictions for a felony drug offense” meant he was subject to a mandatory term of life imprisonment without release pursuant to 21 U.S.C. § 841(b)(1)(A)(viii) on Counts 1 and 2. Accordingly, he was sentenced to concurrent terms of life imprisonment on Counts 1 and 2. Additionally, he was sentenced to 90 days' imprisonment on Count 3, 10 years' imprisonment on Counts 6 and 7, 30 years' imprisonment on Count 4, to be served consecutively to the sentences on Counts 1, 2, 3, 6, and 7, and life imprisonment on Count 5, to run consecutively to the term on Count 4.

         Gamboa appealed, and his conviction on Count 7 was vacated, but his sentence and conviction were affirmed in all other respects. United States v. Gamboa, 439 F.3d 796 (8th Cir. 2006). His Petition for Writ of Certiorari was denied by the Supreme Court on November 13, 2006. His initial Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence was denied on February 26, 2008, and the Eighth Circuit declined to issue a certificate of appealability. Gamboa v. United States, No. 09-1781 (8th Cir. Oct. 20, 2009). Gamboa has since filed numerous motions and petitions for post-conviction relief, all unrelated to the issues he has brought here. See, e.g., Gamboa v. United States, No. 13-2674 (8th Cir. Oct. 20, 2013) (affirming dismissal of successive § 2255 motion brought without authorization); Gamboa v. United States, No. 12-3864 (8th Cir. Mar. 28, 2013) (denying application for successive § 2255 motion); Gamboa v. Stine, No. 6:07-cv-00002 (E.D.K.Y. Jan. 5, 2007) (denying § 2241 petition); Gamboa v. Warden, FCC Coleman, No. 5:11-cv-00202 (M.D. Fl. May 20, 2011) (dismissing § 2241 petition). Gamboa v. Krueger, 668 Fed.Appx. 654 (7th Cir. Sep. 24, 2016) (affirming dismissal of § 2241 petition).

         On July 26, 2017, Gamboa filed this Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Relying on Mathis v. United States, 136 S.Ct. 2243 (2016), he argued that his prior convictions did not constitute felony drug offenses for the purposes of the sentencing enhancement under 21 U.S.C. § 841(b)(1)(A), as defined in 21 U.S.C. § 802(44). Accordingly, he argued, he should not have been subject to mandatory life sentences. He also challenged the district court's decision to withhold federal benefits from him for life pursuant to 21 U.S.C. § 862(a).

         On February 28, 2019, this Court dismissed Gamboa's Petition, finding he could not show his claims fell within the 28 U.S.C. § 2255(e) savings clause. See Order (Doc. 32). Specifically, this Court found that Gamboa's claim was not previously foreclosed. Judgment was entered on March 4, 2019 (Doc. 33). Gamboa timely filed his Motion for Reconsideration of the Court's Order under Fed.R.Civ.P. 59(e). (Doc. 34). He also filed a Motion for Resolution and/or Bifurcation and Certification of Claims for Appeal (Doc. 35), and a Notice of Reliance of Additional Authority seeking to rely on United States v. Davis, 139 S.Ct. 2319 (2019) (Doc. 36).

         II. DISCUSSION

         A. Gamboa's Motion for Reconsideration is Granted, But His Petition Still Must be Dismissed Pursuant to 28 U.S.C. § 2255(e).

         Gamboa's first motion is a Motion for Reconsideration brought pursuant to Fed.R.Civ.P. 59(e). (Doc. 34). In order “[t]o prevail on a Rule 59(e) motion, the moving party must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir. 2013) (internal quotation omitted).); see also Vesely v. Armslist LLC, 2014 WL 3907114, * 3 (7th Cir. Aug. 12, 2014) (“[W]e have held that a Rule 59(e) motion is not to be used to ‘rehash' previously rejected arguments”). Here, Gamboa argues that the Court misapplied the Seventh Circuit's standard for determining when a claim was previously foreclosed, that the Eighth Circuit case of United States v. Payton, 918 F.2d 54 (8th Cir. 1990), foreclosed his claim, and that the Seventh Circuit's decision in Ojeda is inapposite. The Court agrees that part of its Order could be read as misstating the law, and will clarify its reasoning here.

         As stated in the Court's February Order, generally, federal prisoners who seek to collaterally attack their conviction or sentence must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner's substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to this rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Thus, the Seventh Circuit has held that “alternative relief under § 2241 is available only in limited circumstances: specifically, only upon showing “(1) that he relies on ‘not a constitutional case, but a statutory-interpretation case, so [that he] could not have invoked it by means of a second or successive section 2255 motion,' (2) that the new rule applies retroactively to cases on collateral review and could not have been invoked in his earlier proceeding, and (3) that the error is ...


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