Florez v. United States of America

Filing 24

ORDER denying plaintiff's denying 23 to correct sentence. Ordered by Senior Judge Raymond J. Dearie on 9/7/2011. (Lee, Tiffeny)

FILED

INCLERK'SOFfiCE N~
U.S. DISTRICT COURT E.O. · •

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSE D. FLOREZ,
ORDER

-againstUNITED STATES OF AMERICA,

04-CR-0080 (RJD)
07-CV-4965 (CPS)

Respondent.

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DEARIE, United States District Judge:
Jose D. Florez, a federal prisoner appearing prose, moves for relief pursuant to Fed. R. Civ.
P. 60(b)(6). By order dated July 23, 2009, the Court denied petitioner's motion to vacate his federal
sentence under 28 U.S.C. § 2255. See Florez v. United States, No. 07-CV-4965 (CPS), 2009 WL
2228121 (E.D.N.Y. Jul. 24, 2009), appeal dismissed, Mandate, No. 09-3924-pr (2d Cir. Jan. 28,
2010).
"[R]eliefunder Rule 60(b) is available for a previous habeas proceeding only when the Rule
60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying
criminal conviction." Harris v. United States, 367 F.3d 74,77 (2d Cir. 2004); Rodriguez v. Mitchell,
252 F.3d 191 (2d Cir. 2001). Here, despite petitioner's argumentto the contrary, he does challenge
the underlying criminal conviction in this Rule 60(b) motion and not the integrity of the § 2255
proceeding. In fact, he seeks to "correct" his sentence to remove "the three point offense level
enhancement," Motion at 2, thereby challenging his underlying sentence. The same ground was
presented and rejected in his § 2255 motion. See Florez, 2009 WL 2228121 at *21.
Accordingly, this motion is denied as beyond the scope of Rule 60(b). Gitten v. United
States, 311 F.3d 529, 534 (2d Cir. 2002). Florez may move in the United States Court of Appeals
for the Second Circuit for an order authorizing the district court to consider a second or successive
§ 2255 motion. See 28 U.S.C. § 2255; 28 U.S.C. § 2244(b)(3)(A).
SO ORDERED.

Dated:

CJ / r ,2011
Brooii'y~, New York

~~..

BROOKLYN OFFICE

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Petitioner,

*

s/Raymond J. Dearie
Rayll'\olij J.~e
United State 1strict Judge