Zaragoza-Lopez v. USA
MEMORANDUM DECISION and ORDERdenying 4 Motion to Alter Judgment. Signed by Judge Ted Stewart on 06/11/2012. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION TO ALTER OR AMEND
UNITED STATES OF AMERICA,
Civil Case No. 2:12-CV-470 TS
Criminal Case No. 2:11-CR-125
This matter is before the Court on Petitioner’s Motion to Alter or Amend Judgment
Under Fed.R.Civ.P. 59(e).
Petitioner Rodolfo Zaragoza-Lopez was named in a two-count Indictment on February
16, 2011, charging him with possession of methamphetamine with intent to distribute and aiding
and abetting. Petitioner pleaded guilty to Count I, possession with intent to distribute, on June
14, 2011. On September 27, 2011, the Court sentenced Petitioner to 135 months in the custody
of the Bureau of Prisons and judgment was entered on September 29, 2011.
Petitioner, through counsel, filed an appeal on October 10, 2011. Petitioner later sought
to dismiss his appeal, which request was granted on April 24, 2012.
Petitioner timely filed a § 2255 Motion on May 11, 2012. In his § 2255 Motion,
Petitioner raised a single claim of ineffective assistance of counsel, alleging that his counsel was
ineffective for failing to investigate fingerprints and conduct a lab analysis of the
methamphetamine. On May 16, 2012, the Court denied Petitioner’s § 2255 Motion, finding that
it was barred by the collateral appeal waiver contained in Petitioner’s plea agreement. Petitioner
now seeks to alter or amend that decision under Fed.R.Civ.P. 59(e).
The Tenth Circuit has provided the “steps to be followed by district courts in this circuit
when they are presented with a Rule 60(b) motion in a habeas or § 2255 case.”1 The Court must
first determine whether the motion is a true Rule 60(b) motion or a second or successive
petition.2 Rule 59(e) motions are subject to the same analysis.3
A Rule 59(e) “motion is a second or successive petition if it in substance or effect asserts
or reasserts a federal basis for relief from the petitioner’s underlying conviction.”4 “Conversely,
it is a ‘true’ [59(e)] motion if it either (1) challenged only a procedural ruling of the habeas court
which precluded a merits determination of the habeas application . . . or (2) challenges a defect in
Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006).
United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006).
Spitznas, 464 F.3d at 1215.
the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead
inextricably to a merits-based attack on the disposition of a prior habeas petition.”5
The Tenth Circuit provides that “[i]f the district court concludes that the motion is a true
Rule [59(e)] motion, it should rule on it as it would any other Rule [59(e)] motion. If, however
the district court concludes that the motion is actually a second or successive petition, it should
refer the matter to [the Tenth Circuit] for authorization . . . .”6 “In the case of a ‘mixed’
motion—that is, a motion containing both true Rule [59(e)] allegations and second or successive
habeas claims—the district court should (1) address the merits of the Rule [59(e)] allegations as
it would the allegations in any other Rule [59(e)] motion, and (2) forward the second or
successive claims to this court for authorization.”7
The Court finds that Petitioner’s Motion is largely a “true” motion, in that it challenges an
alleged defect in the integrity of the federal habeas proceeding. However, construing the Motion
broadly, it could also be read as asserting a new claim for ineffective assistance that was not
brought in the original § 2255 motion. As a result, the Court will treat this Motion as a “mixed”
As a mixed motion, the Court will first address the merits of the Motion under Rule
59(e). “Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
Id. at 1215-16.
Id. at 1217.
or prevent manifest injustice.”8 “Thus, a motion for reconsideration is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law.”9 “It is not
appropriate to revisit issues already addressed or advance arguments that could have been raised
in prior briefing.”10
That portion of Petitioner’s Motion that is a “true” motion argues that the “court abused
it’s [sic] authority by responding [to Petitioner’s original § 2255 motion] in an expedited
manner.”11 In essence, Petitioner argues that he was prejudiced by the fact that the Court quickly
resolved his § 2255 motion and, had the Court waited, he could have amended his § 2255 motion
to add a new claim for ineffective assistance of counsel related to the plea or his collateral appeal
The Court finds that Petitioner’s Motion provides no basis for reconsideration. Petitioner
has provided nothing showing a change of law, new evidence, or the need to correct clear error or
prevent manifest injustice. Petitioner merely takes issue with the process used to resolve his §
2255 motion. This argument is without merit.
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District
Courts requires the court to “promptly examine” the motion and “[i]f it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving party is not
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Docket No. 4, at 1.
entitled to relief, the judge must dismiss the motion.” This is the precise procedure employed in
this matter. The Court promptly examined the motion and, after review, dismissed the motion
because Petitioner was not entitled to relief. Therefore, Petitioner’s Motion on this ground fails.
Petitioner also argues that the Court should have “sua sponte detected Petitioner[’s]
argument as being a challenge to the validity of his plea, and collateral appeal waiver.”12 A
review of Petitioner’s original § 2255 motion reveals, however, no such claim. Indeed, the
memorandum in support of the motion makes clear that “Petitioner’s sole allegation of
ineffectiveness is that his attorney did not request a finger print, and methamphetamine
laboratory investigation to reveal if in fact Petitioner’s finger print’s [sic] and the
methamphetamine match of those of Petitioners [sic].”13 Thus, it would have been improper for
the Court to import such a claim into Petitioner’s original § 2255 motion.
To the extent that Petitioner’s Motion can be construed as asserting a new claim of
ineffective assistance of counsel relating to the plea or collateral appeal waiver, the Court must
treat it as a second or successive habeas petition.14 “Before a federal prisoner may file a second
or successive motion under § 2255, the prisoner must first obtain an order from the appropriate
court of appeals authorizing the district court to consider the motion.”15 “A district court does
Id. at 2.
Docket No. 2, at 2 (emphasis added).
See Spitznas, 464 F.3d at 1216 (identifying “a motion seeking to present a claim of
constitutional error omitted from the movant’s initial habeas petition” as an example of a 59(e)
motion “that should be treated as a second or successive habeas petition”).
In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008).
not have jurisdiction to address the merits of a second or successive § 2255 . . . claim until [the
appropriate court of appeals] has granted the required authorization.”16 However, before
transferring a second or successive motion under § 2255 to the appropriate court of appeals for
authorization, the Court must consider whether it is in the interest of justice to do so.17
The Tenth Circuit has delineated factors a Court should consider when determining
whether it is in the interest of justice to transfer a second or successive § 2255 motion. These
whether the claims would be time barred if filed anew in the proper forum,
whether the claims are likely to have merit, and whether the claims were filed in
good faith or if, on the other hand, it was clear at the time of the filing the court
lacked the requisite jurisdiction.18
Considering these factors, the Court finds that it is not in the interest of justice to transfer
Petitioner’s Motion and, as a result, the Court will dismiss the remaining portion of Petitioner’s
Motion for lack of jurisdiction.
It is therefore
ORDERED that Petitioner’s Motion to Alter or Amend Judgment Under Fed.R.Civ.P.
59(e) (Docket No. 4) is DENIED.
Id. at 1251.
See 28 U.S.C. § 1631.
In re Cline, 531 F.3d at 1251.
DATED June 11, 2012.
BY THE COURT:
United States District Judge
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