Perez-Barocela v. United States of America
MEMORANDUM OPINION AND ORDER. Perez-Barocela's Rule 60(b) motion 1 is Denied. He is also Denied a Certificate of Appealability. Because this motion is not considered a second or successive 2255, the Clerk is directed to close this case. (Signed by Judge John D Rainey.) Parties notified. (yhausmann, 6)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
January 19, 2017
David J. Bradley, Clerk
CR. No. 2:12-757-2
MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant/Movant Luis Perez-Barocela’s Motion to
Vacate Judgment Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (D.E. 247),
wherein he seeks to vacate the Court’s previous denial of his motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 (D.E. 239, 240).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A jury convicted Perez-Barocela of conspiracy to possess with intent to distribute more
than 1000 kilograms of marijuana. He was sentenced to 292 months’ imprisonment. PerezBarocela appealed his conviction and sentence, but the Fifth Circuit affirmed. United States v.
Perez-Barocela, 594 Fed. App’x. 224 (5th Cir. Nov. 26, 2014) (per curiam) (designated
unpublished). The Court reduced Perez–Barocela’s sentence to 235 months pursuant to
Amendment 782. Perez–Barocela then filed a timely motion to vacate, set aside, or correct
sentence through counsel on November 18, 2015. The government responded to the motion on
January 25, 2016, and moved to dismiss the motion to vacate. On March 29, 2016, this Court
denied the motion by Memorandum Opinion and Order and final judgment.
II. MOVANT’S ALLEGATIONS
Perez-Barocela claims that his retained § 2255 counsel failed to advise him that the
government moved to dismiss and failed to file a reply. As a result, he was deprived of his ability
to file a reply and was unaware of the denial of his motion until he received a copy of the Court’s
docket sheet on December 16, 2016.
A. Rule 60(b)
The Federal Rules of Civil Procedure are applicable to federal habeas practice “only to
the extent that they are not inconsistent with any statutory provisions or these rules.” Rule 12,
Rules Governing Section 2255 Proceedings for the United States District Courts (2016). Because
the Rules governing § 2255 proceedings limit prisoners to a single § 2255 proceeding, 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).
B. Perez-Barocela’s Motion Seeks Procedural Relief
Perez-Barocela argues that his retained counsel’s failure to provide him with the
government’s response or file a reply violated his procedural rights. He appears to request that
the Court vacate its previous denial and final judgment so he may file a reply. Perez-Barocela’s
argument is procedural and not barred. See Ramirez v. United States, 799 F.3d 845, 850 (7th Cir.
2015) (federal prisoner’s effort to re-open his 2255 based upon abandonment by counsel during
collateral proceedings not second or successive 2255 motion).
C. Analysis of Merits
Even if Perez-Barocela’s statement that counsel did not provide him a copy of the
government’s response is true, the government’s certificate of service reflects that it served
Perez-Barocela with its response at the Federal Correction Institute in El Reno, where PerezBarocela was incarcerated before he filed his motion to vacate. See D.E. 215. The Court also
mailed its Order Reducing Sentence (D.E. 228), Order for the government to respond and
allowing movant to reply (D.E. 233), Memorandum Opinion & Order (D.E. 239), and Final
Judgment (D.E. 240) to Perez-Barocela at that same address. The documents were not returned
to the Court as undeliverable.1 There is a presumption that documents properly addressed and
mailed to the recipient are delivered unless specifically denied by the recipient.2 “Once the
presumption of receipt applies, ‘[i]f a particular plaintiff can offer some evidence to demonstrate
that he or she did not receive the letter within the allotted time, the presumption can certainly be
overcome.’” Id. at 695 (quoting Morgan v. Potter, 489 F.3d 195, 197 n.1 (5th Cir. 2007)).
Perez-Barocela’s unsworn declaration does not directly deny receiving the documents
from the government or the Court, but instead states he did not receive them from counsel. His
further statement that he did not know of any of these events until he received a copy of this
1. When a prisoner is no longer at a BOP facility, the prison returns mail to the Court as undeliverable.
2. When doubt exists as to whether an addressee received a letter, we have previously applied the
mailbox rule, which provides that “[p]roof that a letter properly directed was placed in a U.S. post
office mail receptacle creates a presumption that it reached its destination in the usual time and
was actually received by the person to whom it was addressed.” United States v. Ekong, 518 F.3d
285, 287 (5th Cir. 2007) (per curiam) (quoting Beck v. Somerset Techs., Inc., 882 F.2d 993, 996
(5th Cir. 1989)).
Court’s docket sheet in December is by itself insufficient. See Gamel, 625 Fed. App’x at 696
(recipient’s affidavit that she did not receive letter was insufficient to rebut the presumption of
receipt). Thus the record before this Court reflects that Perez-Barocela received notice of the
government’s response and this Court’s disposition of his motion. Accordingly, his present
motion is without merit.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c)(1)(A). An appeal from the denial of a Rule 59(e) or Rule 60 motion requires a
certificate of appealability in all but very narrow circumstances. Ochoa Canales v. Quarterman,
507 F.3d 884, 888 (5th Cir. 2007) (“We therefore hold . . .that a COA is not required to appeal
the denial of a Rule 60(b) motion . . .only when the purpose of the motion is to reinstate
appellate jurisdiction over the original denial of habeas relief.”). Although Perez-Barocela has
not yet filed a notice of appeal, the § 2255 Rules instruct this Court to “issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” Rule 11, § 2255 Rules.
A certificate of appealability (COA) “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). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To warrant
a grant of the certificate as to claims denied on their merits, “[t]he petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires a §
Gamel v. Grant Prideco, L.P., 625 Fed. App’x 690, 694 (5th Cir. Sept. 11, 2015) (per curiam).
2255 movant to demonstrate that reasonable jurists could debate whether the motion should have
been resolved differently, or that the issues presented deserved encouragement to proceed
further. United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S.
at 483-84). As to claims that the district court rejects solely on procedural grounds, the movant
must show both that “jurists of reasons would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis
Based on the above standards, the Court concludes that Perez-Barocela is not entitled to a
COA on any of his claims. That is, reasonable jurists could not debate the Court’s resolution of
his claims, nor do these issues deserve encouragement to proceed. See Jones, 287 F.3d at 329.
For the foregoing reasons, Perez-Barocela’s Rule 60(b) motion (D.E. 247) is DENIED.
He is also denied a Certificate of Appealability. Because this motion is not considered a second
or successive § 2255, the Clerk is directed to close Cause No. 2:16-CV-542.
It is so ORDERED this 19th day of January, 2017.
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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