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United States v. Perez-Barocela

United States District Court, S.D. Texas, Corpus Christi Division

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LUIS PEREZ-BAROCELA, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE

         Luis 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.

         MOVANT'S ALLEGATIONS

         Movant claims that this Court misapplied the law and ignored his affidavit when it denied his previous motion to reopen his § 2255 motion.

         ANALYSIS

         A. Rule 59(e)

         The 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.

         B. Perez-Barocela's Motion Seeks Procedural Relief

         In his 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, ¶ 7.[1] 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.

         Perez-Barocela 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 reply.

         C. Perez-Barocela Has Not Established Any Basis To Reopen the Proceedings

         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.

         In 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 Cir. 2009).

         Morevoer, 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 ...


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