Andujar v. USA

Filing 17

ORDER dismissing for lack of jurisdiction as an unauthorized successive § 2255 motion to vacate 14 Pro se MOTION for relief of judgment pursuant to rule 60 (b). Signed by District Judge Robert J. Conrad, Jr on 2/21/2018. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-604-RJC
(3:09-153-RJC-2)
WILFREDO ANDUJAR,

)
)
Petitioner,
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)
vs.
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)
)
UNITED STATES OF AMERICA,
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)
Respondent.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on Petitioner’s “Motion for Relief of Judgment
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,” (Doc. No. 14).
I.

BACKGROUND

Petitioner pled guilty in the underlying criminal case to conspiracy to distribute and possess
with intent to distribute at least one kilogram of heroin. (3:09-cr-153, Doc. No. 29). As part of the
plea agreement, Petitioner admitted his prior convictions were valid predicate felony drug offenses
and acknowledged the applicable mandatory life sentence, however, the Government agreed to
withdraw one prior conviction thereby reducing Petitioner’s exposure to a mandatory minimum
sentence of 20 years. (3:09-cr-153, Doc. No. 71). The Court accepted the plea and sentenced
Petitioner to 20 years’ imprisonment. (3:09-cr-153, Doc. No. 117). Petitioner did not appeal.
In 2011, Petitioner filed a § 2255 Motion to Vacate in the instant case, arguing that counsel
was ineffective for failing to challenge his Illinois prior felony drug convictions based on
Carachuri-Rosendo v. Holder, 130 S.Ct. 2577, and United States v. Simmons, 649 F.3d 217 (4th
Cir. 2011), and for advising him to plead guilty and thereby waiving his right to appeal the
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sentence. The Court denied relief on March 22, 2013. (Doc. No. 10). The Fourth Circuit dismissed
his appeal on July 30, 2013. (Doc. No. 15).
Meanwhile, on July 11, 2013, Petitioner filed the instant Rule 60(b) Motion. (Doc. No. 14).
He argues that the Court should have granted him an evidentiary hearing where he could have
proven that prior convictions do not qualify him for the § 851 enhancement, and the Government
committed a fraud on the Court during the criminal case by filing a notice of enhancement pursuant
to § 851, where the Government knew these convictions were not final at the time of the indictment
in this criminal case.
II.

LEGAL STANDARDS

Rule 60 provides permits a court to correct orders and provide relief from judgment under
the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
A Rule 60(b) motion must be made within a “reasonable time,” and for reasons (1) through
(3), “no more than a year after the entry of the judgment or order or the date of the proceeding.”
Fed. R. Civ. P. 60(c). The party moving for relief from judgment under Rule 60(b) bears the burden
of showing timeliness. Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295 (4th
Cir. 2017).
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Rule 60(b) is an “extraordinary remedy” which sets aside “the sanctity of [a] final
judgment.” Compton v. Alton Steampship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979) (citation and
internal quotation marks omitted). A movant must first show that he has moved in a timely fashion,
that he has a meritorious defense to the judgment, that the opposing party would not be unfairly
prejudiced by a set aside, and show exceptional circumstances. See Aikens v. Ingram, 652 F.3d
496, 501 (4th Cir. 2011); Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (citing Compton,
608 F.2d at 102). If a movant satisfies these three requirements, then he must show that his motion
falls under one of the six grounds set forth in Rule 60(b). Werner, 731 F.2d at 207. Relief from
judgment under Rule 60(b)(6) should be granted only upon a showing that relief is “appropriate to
accomplish justice” in “situations involving extraordinary circumstances.” Dowell v. State Farm
Fire Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.1993) (internal quotation marks and citation
omitted). A change in decisional law subsequent to a final judgment provides no basis for relief
under Rule 60(b)(6). Id.
Where a petitioner seeks relief from a judgment under Rule 60(b) on grounds other than a
clerical mistake, courts must treat such a motion as seeking successive post-conviction relief when
failing to do so would allow the applicant to evade the bar against re-litigation of claims presented
in a prior application or the bar against litigation of claims not presented in a prior application.
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003) (requiring district courts to review
Rule 60(b) motions to determine whether such motions are tantamount to a § 2255 motion); 28
U.S.C. § 2244(b)(3)(A) (“[b]efore 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.”).
As a general matter, “a motion directly attacking the prisoner’s conviction or sentence will
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usually amount to a successive application, while a motion seeking a remedy for some defect in
the collateral review process will generally be deemed a proper motion to reconsider.” Winestock,
340 F.3d at 207; see also Gonzalez v. Crosby, 545 U.S. 524, 531-33 (2005) (concluding that a
Rule 60(b) motion for relief from judgment that directly challenges the underlying conviction
constitutes a successive § 2254 petition).
III.

DISCUSSION

Petitioner argues that Rule 60(b) relief is warranted because his prior Illinois convictions
did not qualify him for a § 851 enhancement. He claims that the Government knew these
convictions did not qualify at the time of the criminal proceedings, and that he would be able to
prove the invalidity of those prior convictions at a hearing.
Petitioner does not seek to remedy some defect in the § 2255 proceedings, rather, he
attempts to re-litigate the claims presented in his § 2255 Motion to Vacate. These claims are, in
substance, successive § 2255 claims because they attack his criminal sentence. See Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005). Petitioner does not allege that he has obtained leave from the
Fourth Circuit to file a successive § 2255 motion to vacate. Therefore, the present motion is
construed as an unauthorized second or successive § 2255 motion to vacate over which the Court
lacks jurisdiction. Id.
IV.

CONCLUSION

For the reasons stated herein, Petitioner’s motion for Rule 60(b) relief is construed as an
unauthorized successive § 2255 motion to vacate that is dismissed for lack of jurisdiction.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s “Motion for Relief of Judgment Pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure,” (Doc. No. 14), is DISMISSED for lack of jurisdiction
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as an unauthorized successive § 2255 motion to vacate.
Signed: February 21, 2018

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