ROSARIO v. UNITED STATES OF AMERICA

Filing 45

OPINION. Signed by Judge Noel L. Hillman on 4/19/2023. (alb, n.m.)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
RENE ROSARIO,
:
:
Petitioner,
:
Civ. No. 14-5592 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Rene Rosario
64817-050
Federal Prison Camp
P.O. Box 2000
Lewisburg, PA 17837
Petitioner pro se
Phillip R. Sellinger, United States Attorney
Diana V. Carrig, Assistant United States Attorney
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
The Court denied Petitioner Rene Rosario’s amended motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 on September 24, 2018.

ECF No. 41.

He now moves for to

file a supplemental pleading under Federal Rule of Civil
Procedure 15(d).

ECF No. 42.

For the reasons that follow, the

Court will dismiss the motion for lack of jurisdiction.

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I.

BACKGROUND
On February 6, 2013, Petitioner pleaded guilty to a one

count Information charging him with conspiring to distribute and
possess with intent to distribute more than 500 grams of
cocaine, in violation of 21 U.S.C. § 846.

United States v.

Rosario, No. 13-cr-0095 (D.N.J.) (“Crim. Case”) ECF No. 11, 12,
45.

Petitioner’s plea agreement explained the potential

penalties from his plea, including the five-year mandatory
minimum sentence and forty-year maximum sentence.
No. 12 at 1-2.

Crim. Case

In addition, the plea agreement included a

stipulation pertaining to the possibility that the Court would
find that Rosario was a career offender under U.S.S.G. § 4B1.1
at sentencing.

Id., Sch. A, ¶ 5.

During the guilty plea

colloquy, the Court questioned Petitioner about his
understanding and acceptance of the plea agreement and concluded
that Rosario understood and accepted the plea agreement, and
that he knowingly, intelligently, and voluntarily waived his
right to proceed to trial.
Before sentencing, the Probation Office determined that
based upon Petitioner’s three prior drug trafficking
convictions, Petitioner qualified as a career offender within
the meaning of U.S.S.G. § 4B1.1.

Crim. Case No. 30 at 15.

Applying the career offender guideline, Probation determined
that Rosario had a total offense level of 31 and a criminal
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history category of VI, which corresponded to an advisory
Guidelines range of 188 to 235 months with a statutory mandatory
minimum sentence of five years.

Id. at 16.

Petitioner appeared before this Court for sentencing on
September 5, 2013.

The Court accepted the Probation

Department’s determination that the career offender provision in
U.S.S.G. § 4B1.1 applied to Petitioner and, therefore, his
offense level was 31 with Criminal History Category of VI,
yielding an advisory range of 188 to 235 months’ imprisonment.
Crim. Case No. 25 at 9.

The Court granted Petitioner a two-

level downward variance based upon his lack of a history for
violence, his role in the offense, his attempt to cooperate with
the Government, his difficult upbringing, his lengthy presentencing incarceration, his role as a father, and his strong
family support.

Id. at 28.

Within the newly reduced range of 151 to 188 months, which
corresponded to an offense level of 29 and Criminal History
Category VI, the Court sentenced Petitioner to 168 months’
imprisonment and five years of supervised release.
33.

See also Crim. Case No. 16.

Id. at 32-

The Court explained that the

sentence was necessary to punish Petitioner and deter others
from committing serious drug trafficking offenses.

The Court

also noted the quantity of drugs involved in the transaction and
that “[t]his was not a one-shot deal by a couple of amateurs . .
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. and you did it in a place where people are going about their
daily lives, shopping and at a risk because of the danger
inherent in this kind of activity in a commercial zone.”
Case No. 25 at 30-31.

Crim.

Petitioner filed a direct appeal with the

Third Circuit. Crim. Case No. 14; United States v. Rosario,
Appeal No. 13-3864 (3d Cir. filed Sept. 30, 2013).

The Third

Circuit dismissed the appeal at Petitioner’s request.

Crim.

Case No. 21; Rosario, Appeal No. 13-3864 (Feb. 24, 2014).
Petitioner timely filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255, ECF No. 1, and
thereafter filed an amended motion, ECF No. 11.

In the amended

petition, Plaintiff alleged that his trial counsel and appellate
counsel were ineffective.

The Court denied the amended motion

and declined to issue a certificate of appealability on
September 24, 2018.

ECF No. 41.

Petitioner filed a motion to file a supplemental pleading
“due to subsequent events related to the claims presented in
Petitioner’s 28 U.S.C. § 2255 Motion” on December 6, 2019.
No. 42 at 4.

ECF

“The subsequent events relating to Petitioner’s §

2255 are in accordance with the Controlled Substance Act and
predicate felony drug offense.”

Id.

On April 29, 2020,

Petitioner filed a “supplemental pleading to correct and
clarify” his motion.

ECF No. 42.

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II.

STANDARD OF REVIEW
Petitioner asserts that his filing is a permissible under

Federal Rule of Civil Procedure 15, which allows for the
relation-back of amendments and supplemental pleadings.
Civ. P. 15(c)-(d).

Fed. R.

Rule 15, however, no longer applies once the

Court has adjudicated the motion, in this case Petitioner’s §
2255 petition, and entered final judgment.

See Ahmed v.

Dragovich, 297 F.3d 201, 207–08 (3d Cir. 2002) (“Although Rule
15 vests the District Court with considerable discretion to
permit amendment ‘freely ... when justice so requires,’ the
liberality of the rule is no longer applicable once judgment has
been entered.

At that stage, it is Rules 59 and 60 that govern

the opening of final judgments.” (omission in original) (quoting
Fed. R. Civ. P. 15(a))).

Petitioner’s § 2255 motion has been

ruled upon by this Court, and he did not seek a certificate of
appealability from the Third Circuit.
to the motion.

Rule 15 no longer applies

In the interests of justice, the Court will

consider the motion under Rule 60(b).

Johnson v. Peralta, 599

F. App’x 430, 432–33 (3d Cir. 2015) (“A post-judgment motion
seeking to amend a complaint is construed as a motion filed
pursuant to Fed. R. Civ. P. 60(b).”).
A Rule 60(b) motion is “addressed to the sound discretion
of the trial court guided by accepted legal principles applied
in light of all the relevant circumstances.”
5

Ross v. Meagan,

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638 F.2d 646, 648 (3d Cir. 1981).

Rule 60(b) “does not confer

upon the district courts a ‘standardless residual of
discretionary power to set aside judgments.’”

Moolenaar v. Gov.

of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).
III. DISCUSSION
The Court must first consider whether this motion is
properly brought under Rule 60(b) or whether it is a second or
successive § 2255 petition.

The Antiterrorism and Effective

Death Penalty Act of 1996’s (“AEDPA”) “restrictions on the
filing of second or successive habeas petitions make it
implausible to believe that Congress wanted Rule 60(b) to
operate under full throttle in the habeas context.”

Rodwell v.

Pepe, 324 F.3d 66, 67 (1st Cir. 2003); accord Pridgen v.
Shannon, 380 F.3d 721, 727 (3d Cir. 2004).

“[I]n those

instances in which the factual predicate of a petitioner’s Rule
60(b) motion attacks the manner in which the earlier habeas
judgment was procured and not the underlying conviction, the
Rule 60(b) motion may be adjudicated on the merits.”
380 F.3d at 727.

Pridgen,

“However, when the Rule 60(b) motion seeks to

collaterally attack the petitioner’s underlying conviction, the
motion should be treated as a successive habeas petition.”

Id.

“A true Rule 60(b) motion ‘attacks . . . some defect in the
integrity of the federal habeas proceedings.’
procedural in nature.”

These attacks are

United States v. Doss, No. 20-2773, 2023
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WL 2783253, at *2 (3d Cir. Apr. 5, 2023) (omission in original)
(quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)).
Petitioner is not challenging the procedural aspects of his §
2255 proceedings; he is attacking his original sentence.

See

ECF No. 42 at 4 (“[]Petitioner is asserting plain error in
regards to his sentence of 168 months imposed by the above
Court.”); see also ECF No. 43 at 2 (“This motion is to correct
an illegal sentence, vacate my current sentence, and to have
Your Honor order a new sentencing hearing.”).
Petitioner relies on a Third Circuit opinion that was
issued after the Court ruled on his motion, United States v.
Aviles, 938 F.3d 503 (3d Cir. 2019), for the proposition that
two of his prior convictions cannot “properly serve as predicate
felony drug offenses” for the career offender provision.
No. 43 at 4.

ECF

He argues Aviles is “a subsequent event that

changed the law and is directly applicable to my case and
sentence.”

Id. at 3.

However, a change of law does not convert

Petitioner’s filing into a permissible motion for
reconsideration under the Federal Rules of Civil Procedure.
“Rule 60(b) cannot be a vehicle to present new claims for relief
based on later changes in substantive law.”

Doss, 2023 WL

2783253, at *3 (citing Gonzalez, 545 U.S. at 531).

AEDPA

specifically references and sets forth the procedure by which a
prisoner may challenge his conviction on the basis of a “new
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rule of constitutional law” in §§ 2244(b)(2)(A) and 2255(h)(2).
“[A] Rule 60(b) motion based on a purported change in the
substantive law governing the claim could be used to circumvent
[AEDPA’s] dictate that the only new law on which a successive
petition may rely is ‘a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.’”
32.

Gonzalez, 545 U.S. at 531-

Petitioner, like this Court, is bound by AEDPA.
For all of these reasons, Petitioner’s “motion to amend” is

in reality a second or successive § 2255 petition.

“Before a

second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
2244(b)(3)(A).

28 U.S.C. §

This requirement is jurisdictional, Lesko v.

Sec'y Pennsylvania Dep't of Corr., 34 F.4th 211, 222 (3d Cir.
2022), and “[l]itigants may not circumvent these requirements by
disguising a second or successive motion as something else, like
a motion under Rule 60(b).”

United States v. Tatar, No. 20-

3432, 2022 WL 2763699, at *3 (3d Cir. July 15, 2022).

There is

no indication that Petitioner has received permission from the
Third Circuit to file a second or successive § 2255 motion.
When a second or successive habeas petition is erroneously
filed in a district court without the permission of a court of
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appeals, the district court's only option is to dismiss the
petition or transfer it to the court of appeals pursuant to 28
U.S.C. § 1631.”
2002).

Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.

The Court declines to transfer the motion to the Third

Circuit as it does not appear that Petitioner can meet the
requirements of § 2255(h).1
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2255.

To the extent a certificate of appealability is

required, the Court declines to issue one.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. 2253(c)(2).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Nothing in this Opinion prevents Petitioner from asking the
Third Circuit for permission to file a second or successive
motion on his own if he chooses.
1

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“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here,

jurists of reason would not find it debatable whether this
Court's procedural ruling is correct.

Accordingly, this Court

will decline to issue a certificate of appealability pursuant to
28 U.S.C. § 2253(c)(2).
V. CONCLUSION
For the reasons expressed herein, the Court will dismiss
Petitioner's motion for lack of jurisdiction.

An accompanying

Order shall issue.

Dated:__April 19, 2023____
At Camden, New Jersey

_s/ Noel L. Hillman__
NOEL L. HILLMAN
United States District Judge

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