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United States v. Garcia

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

July 14, 2017

UNITED STATES OF AMERICA
v.
ORLANDO GARCIA; aka GARCIA

          ORDER

          JANIS GRAHAM JACK SENIOR UNITED STATES DISTRICT JUDGE.

         Orlando Garcia filed a Rule 60(b) motion seeking relief from this Court's denial of his § 2255 motion. D.E. 781. The motion is dismissed.

         BACKGROUND

         Garcia was convicted after a jury trial of conspiracy to possess with intent to distribute more than 500 grams of methamphetamine. The Court sentenced him to life imprisonment in May 2012. The Court found that the conspiracy involved 5.21 kilograms (actual) methamphetamine and 77 grams of methamphetamine. In addition, the Court found that the methamphetamine was imported, and Garcia was a manager or supervisor in the enterprise.

         Garcia appealed, but the Fifth Circuit Court of Appeals affirmed his conviction and sentence in May 2013. He then filed a timely motion to vacate, set-aside or correct sentence pursuant to 28 U.S.C. § 2255. The Court denied the motion and entered final judgment by Orders dated October 31, 2014. Garcia did not seek a certificate of appealability in the Fifth Circuit.

         MOVANT'S CLAIMS

         Garcia filed a motion pursuant to Rule 60(b)(4). He argues that his trial counsel during provided ineffective assistance by waiving his preliminary examination hearing. Garcia also argues that this Court erred by failing to appoint new appellate counsel in 2012.

         RULE 60(B) MOTION

         A Rule 60(b) motion may be used to attack a previous final judgment in limited circumstances. Fed.R.Civ.P. 60(b). The motion generally must be brought within a year after judgment, unless the movant establishes that the preceding judgment is void, has been satisfied, discharged, or released; or for any other reason that justifies relief. Fed.R.Civ.P. 60(c)(1). Garcia alleges that Rule 60(b)(4) applies.

         Rule 60(b)(4) permits a district court to modify its own judgment if the judgment is void. A judgment is not void simply because it may be erroneous. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). Instead, federal courts considering Rule 60(b)(4) motions generally reserve relief for the “exceptional case in which the court that rendered judgment lacked even an arguable basis for jurisdiction.” Id. at 271 (internal quotations omitted). This Courts previous judgment is not void. As the sentencing court, this Court had jurisdiction to decide whether Garcia's conviction complied with constitutional mandates. See 28 U.S.C. §§ 1331, 2255(a).

         A defendant generally has the right to bring only one § 2255 motion. See 28 U.S.C. § 2255(h).[1] A defendant bringing a Rule 60(b) 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 60 motion attacks “some defect in the integrity of the federal habeas proceedings, ” that it does not raise a second or successive claim. Id. A Rule 60(b) motion that seeks to advance one or more substantive claims after denial of a habeas petition is properly classified as a second or successive petition requiring authorization from the Court of Appeals before filing. Id. at 531; see also United States v. Hill, 202 Fed. App'x. 712, 713 (5th Cir., Oct. 13, 2006) (designated unpublished); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999).

         Garcia's present motion seeks reversal of his conviction or a new direct appeal. The issues he raises were available to him at the time he filed his original § 2255 motion.

A subsequent § 2255 motion is “second or successive” when it:
(1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in ...

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