United States District Court, District of Wyoming
OPINION AND ORDER
B. Johnson, United States District Judge
February 27.2015. Dagobcrto Aeevedo-Muno/.
("Defendant") filed a motion under Rules 60(b)(6)
and 60(d)(1). 1 ed.R.Civ.P. which sought to set aside the
court's July 1. 2013 order denying as untimely
defendant's previous motion under 28 U.S.C. § 2255
(Dkt. tt9) [Rule 60 motion] and (Dkt. ill. 8)
[denying defendant's § 2255 motion as untimely].
Defendant contends that his retained counsel misled him by
not responding to inquiries as to a possible appeal and that
the court erred in refusing to excuse defendant's late
filing of the § 2255 motion as untimely. Nearly two
years after the order denying defendant's § 2255
motion as untimely was filed, the Ride 60 motion that now
concerns the court was filed.
20. 2010, the defendant was charged in an Indictment
containing two counts alleging conspiracy to possess with
intent to distribute and to distribute methamphetamine in
violation of 21 U.S.C. §$ 846 and 841(a)(1) and
(b)(1)(A) and conspiracy to import methamphetamine in
violation of'2l U.S.C. §§ 960(a)(1) and
(b)(1)(H). See Criminal Docket. Case No.
10-CR-00137-AB.I-1 ("Cr. Dkt.") # 20. On July 26,
2010, defendant pled guilty pursuant to a plea agreement (Cr.
Dkt. #44 and Transcript),  As part of the plea agreement the
parties stipulated that the relevant conduct amount for
purposes of calculating the advisory guideline base offense
level was fifteen kilograms or more of methamphetamine. which
resulted in a base offense level of 38 (Cr. Dkt. 42 and COP
Trans, at 4). In addition the Plea Agreement contained
defendant's stipulation that he organized the criminal
activity of his co-defendants and acknowledging that his
offense level would increase by 2 levels pursuant to United
States Sentencing Guideline (“U.S.S.G.") § 3B
1.1©). Finally, defendant stipulated that he knew the
methamphetamine in the criminal activity was unlaw fully
imported from Mexico requiring another adjustment of 2 levels
under U.S.S.G. § 2D1.1(b)(4). At his change of pica
hearing, the defendant was informed that he would likely face
a guideline range of 262-327 months, and the government would
recommend that he be sentenced at the low end of that range
(COP Trans, at 37). The Defendant's Presentence Report
("PSR") calculated that his advisory guideline
range was 324-405 months. See PSR and Sent. Trans,
December 9, 2010, defendant was sentenced (Sent. Trans.).
Defendant argued for a variance based on his claim that the
PSR over-represented the seriousness of his criminal history,
and based on his view that his co-defendants, who were
involved at or near the same level he was, were sentenced to
much lower sentences (Sent. Trans, at 10-13). Defendant
argued that a sentence of 160 months would be sufficient
(Sent. Trans, at 13). Consistent with its promise the
government recommended a low end guideline sentence, but
after hearing the defendant's argument for a variance,
the government agreed it would be unfair to sentence him to a
sentence higher than that received by his co-defendants, i.e.
262 months. The government recommended a 262 month
sentence, stating that such;i sentence would fairly represent
the factors set forth in 18 U.S.C. § 3553(a) (Sent.
Trans, at 6, 16-17).
reviewing the presentence report and considering arguments of
counsel the guideline range was found to have been properly
calculated (Sent. Trans, at 20). A variance was determined to
apply under the factors listed in 18 U.S.C. § 3553(a). A
variance to total offense level 36 and criminal history
category III was applied, which resulted in an advisory
guideline range of 235-293 months. Defendant was sentenced to
a term of 248 months (Sent. Trans. At 22). Defendant was
advised that he had 10 days to file his notice of appeal
following the entry of judgment (Sent. Trans, at 24). The
Judgment and Commitment was Hied on December 10. 2010 (Cr.
transpired in the defendant's case until Mr. Accvedo
wrote to the court to inquire whether his counsel had tiled
an appeal (Cr. Dkt. #56). Approximately nineteen months had
passed following entry of the Judgment and Commitment.
Defendant Hied a motion under 28 U.S.C. 2255 on August 27.
2012 (Cr. Dkt # 58). The government responded on November 16.
2012 (Dkt. # 6). It argued that the defendant's motion
was filed eight months past the expiration of §
2255(f)(1)'s one year limitation period, and the
Defendant had not established circumstances to justify
excusing his untimeliness under the doctrine of equitable
lolling (Dkt. # 6at 12-19).
1, 2013. an Order and a Judgment were filed ruling in favor
of the government, dismissing the defendant's § 2255
motion as untimely (Dkt. # 7). The § 2255 motion was not
filed until twenty months after his conviction had become
final, and so was at least eight months late for purposes of
§ 2255's one year limitation period (Id. at
1). In addition the defendant had failed to satisfy the
requirements for "equitable tolling". He failed to
show that he had diligently pursued his rights, and he had
not demonstrated that, notwithstanding his diligence, some
extraordinary circumstance prevented defendant from filing on
lime (Id., at 2).
months passed following entry of the July 1. 2013. order and
judgment dismissing the defendant's § 2255 motion as
untimely. In late February 2015. the defendant filed the
instant motion under Fed.R.Civ.P. 60(b)(6) and 60(d)
contending that the court abused its discretion when it
determined the defendant's § 2255 motion was
inexcusably untimely and dismissing the same..
motion under Fed.R.Civ.P. 60(b) is a second or successive
petition if in substance or effect it asserts or reasserts a
federal basis for relief from the petitioner's underlying
conviction. See Gonzales v. Crosby, 125 S.Ct. 2641,
2651 (2005): Sptznas v. Boone, 464 F.3d 1213, 1215
(10th Cir. 2006). In his Rule 60 motion the
defendant claims this court should revisit and ultimately
reverse its previous ruling that his § 2255 motion was
inexcusably late. A Rule 60(b) motion may be considered on
the merits in the context of a § 2255 proceeding only
where it is based on some claimed defect in the original
habeas proceedings which either precluded a merits
determination on defendant's § 2255 claims or which
otherwise concerned some alleged lack of integrity in those
proceedings. Spitznas v. Boone, at 1215-16; see
also In re Pickard, 681 F.3d 1201. 1205-07(10th Cir.
2012). Rule 60(b) claims which might meet this requirement
include one that the habeas court had in some fashion been
defrauded by the government, or that the habeas court had
made some procedural ruling which precluded a merits
determination on the defendant's motion, or where one or
more of defendant's properly presented § 2255 claims
had simply not been addressed by the district court. See
In re Pickard, 681 F.3d at 1205 (fraud on the habeas
court): Peach v. United States, 468 F.3d 1269, 1271
(10th Cir. 2006) (adjudication properly presented
habeas claims). However, a Rule 60 motion which is not so
limited, and which instead challenges either the bona fides
of defendant's underlying criminal conviction or which
challenges the habeas court's previous decision on the
merits of the defendant's § 2255 motion is not a
proper Rule 60(b) motion. Rather, it is the equivalent of a
second or successive § 2255 motion, and it should be
treated accordingly. In re Pickard, 681 F.3d at
1206; United States v. Espinoza, 622 F.App'x
745. 747 (10th Cir. 2015).
only claim is that the court legally erred in its refusal to
excuse the late filing of his § 2255 motion under the
doctrine of equitable tolling. A ruling that a § 2255
motion failed to satisfy that provision's one year
limitation period constitutes an adjudication of that motion
on the merits, such that later habeas petitions constitute
second or successive motions subject to the prior
authorization requirements of §§ 2255 and 2244.
See In re Rains, 659 F.3d 1274. 1275
(10th Cir. 2011) (dismissal of first habeas
petition as time-barred was a decision on the merits).
Defendant's Rule 60 motion fits the definition of a
second or successive motion which requires prior
authorization from the court of appeals. Id., see also
United States v. Garcia-Rodriquez, 516 F.App'x 704.
706 (10th Cir. 2013).
under Rule 60(b) is discretionary and is warranted only in
exceptional circumstances. VanSkiver v. United
Stales, 952 F.2d 1241. 1243 (10th Cir. 1991).
Defendant offers in support of the Rule 60 motion the same
arguments that were put forward in the original § 2255
motion. He has not provided new events or circumstances, nor
new facts that might cast a compelling new light on the
court's ruling on the § 2255 motion.
Defendant has not addressed the timeliness of his Rule 60
motion. To be timely Rule 60(b)(6) and 60(d) motions
challenging a prior ruling on a § 2255 motion must be
filed within a "reasonable time” following the
earlier ruling. Defendant's motion was filed over twenty
montys following denial of his § 2255 motion and
considering that no exceptional circumstances have been
brought forward for the ...