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REPORT AND RECOMMENDATION

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MAUDO FOFANA,

Petitioner, 

v.

UNITED STATES OF AMERICA,

Respondent.

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Case No. C06-869-JLR-JPD

CR04-511-JLR

REPORT AND RECOMMENDATION 

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Maudo Fofana is currently serving a two-year term of supervised release in

the custody of the United States Bureau of Immigration and Customs Enforcement (“ICE”)

pursuant to 18 U.S.C. § 3624(e), based on statements he made in an application for asylum. 

This is the third case filed in this Court in which petitioner collaterally challenges his continued

detention. See also Fofana v. Melendez, 05-1775-RSM, Dkt. No. 33 (dismissing § 2241

petition with prejudice); Fofana v. Clark, C06-924-JLR, Dkt. No. 26 (same). Petitioner

previously filed a motion in the present case under 28 U.S.C. § 2255 seeking to vacate, set

aside, or correct his 2006 federal court sentence. Dkt. No. 1. Because petitioner’s direct

appeal of his criminal case, along with at least one 28 U.S.C. § 2241 appeal, were still

pending before the United States Court of Appeals for the Ninth Circuit, and because

petitioner’s case did not otherwise present “extraordinary circumstances” justifying relief, the

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REPORT AND RECOMMENDATION

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Honorable James L. Robart dismissed petitioner’s § 2255 motion without prejudice. Dkt. No.

10. Subsequently, and for similar reasons, Judge Robart denied petitioner’s motion for a

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c). Dkt. No. 16. Petitioner

has appealed the former decision to the Ninth Circuit. Fofana v. United States, Case No.

06-36058 (9th Cir. filed Nov. 9, 2006).

The present matter comes before the Court upon petitioner’s motion to reopen his 

§ 2255 case based upon changed circumstances, arguing that the Ninth Circuit’s recent ruling

on his direct appeal invokes the catch-all provision of Federal Rule of Civil Procedure

60(b)(6). Dkt. No. 19; see United States v. Fofana, Case No. 06-30196 (9th Cir. Dec. 12,

2006) (unpublished disposition) (affirming district court’s decision denying defendant’s

motion to withdraw his guilty plea). In the spirit of cooperation, petitioner has promised to

withdraw his appeal of Judge Robart’s § 2255 decision should this Court recommend that his

motion to reopen be granted. After careful consideration of the motion, supporting materials,

governing law, and the balance of the record, the Court recommends that petitioner’s motion

be DENIED.

II. FACTS AND PROCEDURAL BACKGROUND

Petitioner is a native and citizen of Gambia. On February 16, 2002, he entered the

United States at New York, New York, using a Gambian passport under the name

Muhammad Fofana. See Fofana v. Clark, C06-924-JLR-JPD, Dkt. No. 18 at R114, R169,

L215-17. The passport listed petitioner as a native and citizen of Gambia with a date of birth

of August 10, 1970. Id. He was admitted to the United States as a B-2 non-immigrant

visitor for pleasure. Id. On February 13, 2003, petitioner filed an application for asylum

under the name Maudo Fofana. Id. at L173-83, L311. Although petitioner was admitted as a

B-2 visitor with a Gambian passport, he claimed that he was a citizen of Sierra Leone, and

was born on January 7, 1972. Id.

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REPORT AND RECOMMENDATION

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On November 18, 2004, petitioner was arrested and taken into custody by the FBI,

and charged with the crime of Fraud Related to Immigration Documents under 18 U.S.C. §

1546(a), for knowingly and falsely making an asylum application. Fofana v. Clark,

C06-924-JLR-JPD, Dkt. No. 18 at L241-50. He was released from custody on November 29,

2004, and on December 3, 2004, petitioner was transferred to the custody of ICE pursuant to

an arrest warrant. Id. at R111-14. ICE determined that petitioner should remain detained,

finding that he is likely to abscond and is a flight risk. Id. at R112-13. Petitioner

immediately requested a bond redetermination hearing before an Immigration Judge (“IJ”),

and on December 13, 2004, an IJ issued an order denying petitioner bond on the basis that he

was a flight risk. Id. at L16. This determination was affirmed by the Board of Immigration

Appeals (“BIA”) on March 8, 2005. Id. at R281-82.

On July 11, 2005, petitioner, proceeding through counsel, appeared at a master

hearing before an IJ, at which time petitioner admitted that he had entered the United States

on February 16, 2002, as a B-2 visitor using a Gambian passport under the name of

Muhammad Fofana, and that he had subsequently submitted an application for asylum under

the name Mauda Fofana, asserting that he was a citizen of Sierra Leone. Id. at R287; Dkt.

No. 16, Ex. A at 4. On August 3, 2005, the IJ issued a detailed written opinion pretermitting

petitioner’s application for asylum, finding that petitioner knowingly submitted a frivolous

asylum application using counterfeit Sierra Leone identity documents. Id. Dkt. No. 18 at

R291-304. The opinion ordered that petitioner be removed from the United States to

Gambia for failing to possess a valid immigration visa. Id.

Shortly thereafter, petitioner met with his criminal counsel to discuss the upcoming

trial on immigration fraud. Based on the IJ’s detailed opinion and the evidence possessed by

the government, petitioner’s counsel explained that she could not help him win an acquittal,

and advised that he plead guilty. Before petitioner entered a guilty plea, counsel advised him

of the consequences of such a plea and reviewed the entire plea agreement that both had

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REPORT AND RECOMMENDATION

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signed. On November 9, 2005, appearing before the Honorable Monica J. Benton, petitioner

pled guilty to the crime of Fraud Related to Immigration Documents in violation of 18 U.S.C.

§ 1546(a). Id. Dkt. No. 16, Ex. A. In the plea agreement, petitioner admitted to knowingly

and falsely making an asylum application. Id. at 4. The agreement also stated that the

government agreed “to recommend to the sentencing court that the appropriate period of

confinement should be a credit for time served in immigration custody,” with no additional

jail time. See United States v. Fofana, CR04-511-JLR, Dkt. No.148. During the plea

colloquy, Judge Benton reviewed the factual basis for the plea, confirmed that petitioner

could read and write English and had read and understood the agreement, advised him of the

maximum penalties (including the maximum term of supervised release), explained that he

could be removed, and reminded petitioner of the constitutional rights he was relinquishing. 

Id. Dkt. No. 171 at 4-11, 13.

On January 2, 2006, petitioner, proceeding through new counsel, filed a motion to

withdraw his guilty plea, arguing that petitioner’s misunderstanding of the term “supervised

release” in the plea agreement, and the failure of his previous counsel and Judge Benton to

correct this misunderstanding, warranted withdrawal of the plea. Id. Dkt. No. 166. Five days

later, Judge Robart conducted an evidentiary hearing on the matter, at which time petitioner

testified regarding the circumstances surrounding his plea. Id. Dkt. No. 176, 203. At

hearing’s end, Judge Robart denied petitioner’s motion, finding that petitioner had failed to

establish a “fair and just reason” to withdraw his guilty plea under Fed. R. Crim. P.

11(d)(2)(B). See id. Dkt. No. 203, at 82 (Robart, J.) (“Mr. Fofana made an assumption about

further developments in his immigration proceeding and then took an action in his criminal

proceeding, which was unrelated to what was going to happen in immigration.”). On March

27, 2006, Judge Robart entered judgment against petitioner, sentencing him to twelve days

confinement, with credit for twelve days served, followed by a two-year term of supervised

release. See id. Dkt. Nos. 186, 190.

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1

 Although Gonzalez expressly limited its holding to petitions brought under 28 U.S.C.

§ 2254, subsequent appellate decisions have extended Gonzalez’s reasoning to § 2255 motions.

See, e.g., United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); United States v. Scott,

414 F.3d 815, 816 (7th Cir. 2005); see also Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)

(section 2244(b) requirements must be met for successive § 2255 motions). This Court does the

same, finding no reason that would make Gonzalez inapplicable to the facts of this case. 

REPORT AND RECOMMENDATION

PAGE – 5

During the pendency of petitioner’s Rule 11(d) motion, the BIA dismissed

petitioner’s appeal of the IJ’s removal order. Fofana v. Clark, C06-924-JLR-JPD, Dkt.

No.13, Ex. 4. Petitioner’s appeal of the BIA’s ruling is currently pending before the Ninth

Circuit, which has granted petitioner’s motion for stay of removal pending its decision. Id.

Ex. 5.

III. DISCUSSION

A. Fed. R. Civ. P. 60(b)(6)

Under Federal Rule of Civil Procedure 60(b)(6), “[o]n motion and upon such terms as

are just, the court may relieve a party . . . from a final judgment, order, or proceeding . . .

[for] any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P.

60(b)(6). The motion must be made “within a reasonable time,” and the movant must show

“extraordinary circumstances” justifying the reopening of a final judgment. Gonzalez v.

Crosby, 545 U.S. 524, 535 (2005).1 Rule 60(b)(6) is a catchall provision, and should be 

applied only when the reason for granting relief is not covered by any of the other reasons set

forth in Rule 60. Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 n.8 (9th Cir. 2002). 

This is such a case. A district court considering a Rule 60(b)(6) motion may take into

account factors such as “the diligence of the movant, the probable merit of the movant’s

underlying claims, the opposing party’s reliance interests in the finality of the judgment, and

other equitable considerations.” Gonzalez, 545 U.S. at 540. 

However, the Court may not conduct the aforementioned analysis if petitioner’s §

2255 motion is a “second or successive” motion governed by § 2244(b)(1)-(2). See 28 U.S.C.

§ 2255, ¶ 8. The difference between a true Rule 60(b) motion and an unauthorized “second

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REPORT AND RECOMMENDATION

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or successive” habeas corpus petition was explained in Gonzalez v. Crosby, 545 U.S. 524

(2005). There, the Supreme Court held that a Rule 60(b) motion that “seeks to add a new

ground for relief,” or “attacks the federal court’s previous resolution of a claim on the

merits,” constitutes a second or successive habeas petition. Id. at 532. 

Here, petitioner’s Rule 60(b)(6) motion advances no new arguments and reasserts no

old ones. It simply attacks the court’s previous decision dismissing the § 2255 motion

without prejudice for prudential reasons in light of, inter alia, petitioner’s direct appeal,

which was then pending before the Ninth Circuit. Because the instant motion confines itself

not only to the first federal habeas proceeding, but also to the non-merits aspect of that

proceeding, it is not a “second or successive” petition under 28 U.S.C. § 2244(b), as defined

by Gonzalez. See Gonzalez, 545 U.S. at 534. In other words, because petitioner’s motion

challenges only a procedural ruling of the district court which precluded a merits

determination of his § 2255 motion, the Court treats the instant motion as a true Rule 60(b)(6)

motion. 

B. Petitioner’s Motion

1. Diligence of the Movant

A Rule 60(b)(6) motion is required to be brought “within a reasonable time.” Fed. R.

Civ. P. 60(b)(6). “What constitutes a reasonable time depends on the facts of each case,” and

should take into consideration the reasons for the delay and whether the government was

prejudiced by the delay. In re Pacific Far East Lines, Inc., 889 F.2d 242, 249 (9th Cir.

1989). Here, petitioner filed his motion to reopen twenty-eight days after the Ninth Circuit

issued a memorandum opinion affirming Judge Robart’s decision denying petitioner’s motion

to withdraw his guilty plea. See Dkt. No. 19, Ex. A. The government was in no way

prejudiced by this brief delay. Accordingly, petitioner’s motion is timely under Rule

60(b)(6).

2. Extraordinary Circumstances

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If timely brought, relief under Rule 60(b)(6) requires a showing of “extraordinary

circumstances.” Gonzalez, 545 U.S. at 535. Rule 60(b)(6) relief is to be used “sparingly

[and] as an equitable remedy to prevent manifest injustice.” United States v. Alpine Land &

Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993); see also Latshaw v. Trainer Wortham &

Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006) (“Judgments are not often set aside under

Rule 60(b)(6).”). Importantly, the Supreme Court has cautioned that “[s]uch circumstances

will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535. To obtain Rule 60(b)(6)

relief, the movant “‘must demonstrate both injury and circumstances beyond his control that

prevented him from proceeding with the prosecution or defense of the action in a proper

fashion.’” United States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005) (quoting Tani,

282 F.3d at 1168).

Petitioner has failed to allege, much less establish, the requisite “extraordinary

circumstances” justifying relief from judgment under Rule 60(b)(6). First, petitioner presents

no injury and circumstances beyond his control that prevented him from prosecuting his

original habeas claim in the proper fashion. Washington, 394 F.3d at 1157. Second, the

motion itself alleges no manifest injustice or other circumstance that would warrant the rare

equitable relief provided by Rule 60(b)(6).

3. Probable Merit of the Movant’s Underlying Claims

Finally, and perhaps most importantly, the probable lack of merit of the movant’s

underlying § 2255 motion counsels against Rule 60(b)(6) relief. Four claims were presented

by that motion: (1) ineffective assistance of counsel; (2) a due process violation based upon

actual innocence; (3) a flawed indictment; and (4) trial court error in failing to grant

petitioner’s motion to withdraw his guilty plea. Dkt. No. 1.

Petitioner procedurally defaulted on his second and third claims by abandoning them

during an evidentiary hearing before the district court and on direct appeal. See United States

v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (noting that a § 2255 movant commits a

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2

 Nor has petitioner established, under Schlup v. Delo, 513 U.S. 298 (1995), that his

claim of actual innocence “is sufficient to bring him within the ‘narrow class of cases . . .

implicating a fundamental miscarriage of justice.’” Carriger v. Stewart, 132 F.3d 463, 477 (9th

Cir. 1997) (en banc) (quoting Schlup, 513 U.S. at 315). In other words, in light of all the

evidence, it is not “more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327.

REPORT AND RECOMMENDATION

PAGE – 8

procedural default if he “could have raised a claim of error on direct appeal but nonetheless

failed to do so”). In federal habeas cases, a petitioner “who fails to raise a claim on direct

appeal is barred from raising the claim on collateral review,” unless the petitioner can

demonstrate both “cause” for not raising the claim at trial, and “prejudice” from not having

done so. Sanchez-Llamas v. Oregon, ___ U.S. ___, 126 S. Ct. 2669, 2682 (2006); see also

Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614,

621 (1998). Here, petitioner has failed to establish cause for his failure to raise his due

process and flawed indictment arguments.2 Petitioner had ample opportunity to raise these

claims during a lengthy evidentiary hearing before the district court and on direct appeal. His

choice not to do so bars collateral review of those claims. 

Petitioner’s failure to present his ineffective assistance of counsel claim, however,

does not bar collateral review. The Supreme Court in Massaro held that such claims may be

raised for the first time in a proceeding under 28 U.S.C. § 2255. Nevertheless, petitioner’s

ineffective assistance claim lacks merit.

Claims of ineffectiveness of counsel are reviewed according to the standard announced

in Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Rupe v. Wood, 93 F.3d 1434,

1445 (9th Cir. 1996). In order to prevail on such a claim, the petitioner must establish that his

counsel’s performance at trial was deficient, and that the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687. 

To satisfy the first prong of the Strickland test, the petitioner must establish that

appellate counsel’s performance was deficient, i.e., that it fell below an “objective standard of

reasonableness” under “prevailing professional norms.” Id. at 687-88. To do so, the petitioner

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must rebut the “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. The test is not whether

another lawyer, with the benefit of hindsight, would have acted differently, but whether

“counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687, 689; see also Dows v. Wood, 211 F.3d 480,

487 (9th Cir. 2000) (“Under Strickland, counsel’s representation must be only objectively

reasonable, not flawless or to the highest degree of skill.”). 

To meet the second Strickland requirement of prejudice, the petitioner must show that

counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. It is not

enough that counsel’s errors had “some conceivable effect on the outcome.” Id. at 693. 

Rather, the petitioner must establish a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 691. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome” of

the case. Id. at 694. Failure to satisfy either prong of the Strickland test obviates the need to

consider the other. Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).

Here, petitioner has failed to demonstrate that his counsel’s performance at trial was

deficient. Petitioner’s trial counsel was able to negotiate a sentencing recommendation of

credit for time served, which was eventually imposed by the district court. See Dkt. No. 190. 

Regarding the issue of supervised release, counsel reasonably concluded that, “in light of the

findings entered by the immigration judge at [petitioner’s] asylum hearing,” petitioner would be

removed to Gambia after serving his term of imprisonment, and thus would be unaffected by

imposition of supervised release. Dkt. No. 1, Ex. J at 6 (Declaration of Trial Counsel). While

perhaps not flawless in hindsight, counsel’s representation in this regard was objectively

reasonable and thus not deficient under Strickland. Because counsel’s performance was not

deficient, it could not have prejudiced petitioner’s defense. Strickland, 466 U.S. at 687.

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Finally, petitioner’s fourth claim—regarding petitioner’s motion to withdraw his

guilty plea—was not only denied on its merits by the Ninth Circuit on direct appeal, see

United States v. Fofana, Case No. 06-30196 (9th Cir. Dec. 12, 2006) (unpublished

disposition), but it appears to have now been abandoned by the petitioner. See Dkt. No. 21 at

32. Assuming arguendo that petitioner has not done so, and that this Court could entertain

the issue, the Court would adopt the rationale of the Ninth Circuit on direct appeal. See Reed

v. Farley, 512 U.S. 339, 358 (1994) (“[C]laims will ordinarily not be entertained under §

2255 that have already been rejected on direct review.”); Polizzi v. United States, 550 F.2d

1133, 1135 (9th Cir. 1976) (district court may refuse to entertain a § 2255 motion based on

claims of error which were previously rejected on the merits in a direct appeal, absent a

showing of “manifest injustice []or a change in law”). As a matter of law, Fed. R. Civ. P. 11

does not require a sentencing court to inform a criminal defendant of the “collateral

consequences” of his guilty plea, which includes immigration consequences such as the term

of supervised release petitioner is now serving. United States v. Amador-Leal, 276 F.3d 511,

517 (9th Cir. 2002) (“[I]mmigration consequences continue to be a collateral consequence of

a plea and the resulting conviction. This means that district courts are not constitutionally

required to warn defendants about potential removal in order to assure voluntariness of a

plea.”). Accordingly, Petitioner’s Rule 11 and due process rights were not violated.

IV. CONCLUSION

Petitioner has failed to meet the requirements of Rule 60(b)(6). Although petitioner’s

motion was made within a reasonable time, it fails to establish the requisite “extraordinary

circumstances” justifying relief from judgment. Accordingly, the Court recommends that

petitioner’s motion to reopen pursuant to Rule 60(b) be DENIED. A proposed order

accompanies this Report and Recommendation.

DATED this 25th day of June, 2007. AJAMES P. DONOHUE

United States Magistrate Judge 

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