United States District Court, S.D. Texas, Corpus Christi Division
GRAHAM JACK SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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. §§
defendant generally has the right to bring only one §
2255 motion. See 28 U.S.C. §
2255(h). 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).
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