United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE
Perez-Barocela (Perez-Barocela) filed a Rule 59(e) motion
requesting that the Court reconsider its denial of his Rule
60(b) motion to reopen his § 2255 proceedings. D.E. 249.
This Court's Memorandum Opinion and Order dated January
19, 2017, recited the history of the proceedings. D.E. 247.
claims that this Court misapplied the law and ignored his
affidavit when it denied his previous motion to reopen his
§ 2255 motion.
Federal Rules of Civil Procedure apply to federal habeas
practice “only to the extent that they are not
inconsistent with any statutory provisions or these
rules.” Rule 12, Rules Governing Section 2255
Proceedings for the United States District Courts (2017).
Because the Rules governing § 2255 proceedings limit
prisoners to a single § 2255 proceeding, a defendant
bringing a Rule 59(e) motion may run afoul of the prohibition
on second or successive habeas motions. Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005). It is only when a Rule
59(e) motion attacks “some defect in the integrity of
the federal habeas proceedings, ” that it does not
raise a second or successive claim. Id.
Perez-Barocela's Motion Seeks Procedural Relief
previous motion, Perez-Barocela's unsworn declaration
stated in part, “My attorney failed to apprise me of
the Government's motion to dismiss and also failed to
file a reply brief to establish the cause and prejudice
standard necessary to overcome a procedural default
defense.” D.E. 247, ¶ 4. “I found out my
§ 2255 motion had been dismissed and denied through the
court docket sheet after several months of unsuccessful
attempts to contact my lawyer.” Id, ¶
The Court rejected Perez-Barocela's affidavit as
insufficient to rebut the record, which reflected numerous
mailings to him by the Court and the United States.
argues that the Court misapplied the presumptions regarding
received mail, citing Manojiya v. Gonzales, 432 F.3d
588, 589-90 (5th Cir. 2005), in support. As a result, he
attacks this Court's ruling on the resolution of a
procedural matter, his alleged lack of opportunity to file a
Perez-Barocela Has Not Established Any Basis To Reopen the
Manojiya court held that the immigration judge
incorrectly relied on the presumption of receipt when a
notice was sent by regular mail rather than by certified mail
as required by immigration procedures. 432 F.3d at 589. The
issue was whether the immigration plaintiff was properly
served with notice of a removal hearing. Id. The
plaintiff filed an affidavit in which he testified he did not
receive notice of the rescheduled hearing. Id.
Although Manojiya has been cited by other
immigration cases, because it addresses requirements for
service of immigration documents, its holding is limited to
the immigration context.
contrast, the presumption cited by the Court is generally
applicable to mail service. Gamel v. Grant Prideco,
L.P., 625 Fed. App'x. 690, 695 (5th Cir. Sept. 11,
2015) (per curiam) (unpublished) (citing United States v.
Ekong, 518 F.3d 285, 287 (5th Cir. 2007) (per curiam));
Duron v. Albertson's LLC, 580 F.3d 288, 290 (5th
even if Perez-Barocela did not receive the documents as he
alleges, he has not demonstrated any harm from the
Court's denial of his motion to reopen. Rule 5 permits a
reply to be filed, but “it does not require the Court
to wait on a reply before ruling.” Nix ...