USA v. Rico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 19-cr-00145-PAB-2
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.
2. ARMANDO ROGELIO DURETE,
Defendant-Movant.
ORDER
This matter comes before the Court on the Motion for Relief from Judgment
[Docket No. 162] and Letter re: Appointment of Counsel [Docket No. 166] requesting
counsel’s assistance on the Motion for Relief from Judgment filed pro se by defendant
Armando Durete. The Court must construe the motion liberally because Mr. Durete is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
After reviewing the pertinent portions of the record in this case, the Court
concludes that the motion should be dismissed for lack of jurisdiction. See, e.g., United
States v. Edge, 315 F. App’x 92, 95-96 (10th Cir. 2009) (unpublished); United States v.
Sanchez, 568 F. App’x 557, 559 (10th Cir. 2014) (unpublished).
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I. PROCEDURAL HISTORY
Following a jury verdict, on August 28, 2019, Mr. Durete was convicted of one
count of possession of a firearm and ammunition by a prohibited person, in violation of
18 U.S.C. § 922(g)(1). Docket No. 67. He was sentenced to 120 months of
imprisonment on February 28, 2020, [Docket No. 127] and the judgment was entered
on March 4, 2020 [Docket No. 128].
Mr. Durete appealed his conviction, and the Tenth Circuit affirmed. Docket No.
153. On September 20, 2021, Mr. Durete filed a Motion for Relief from Judgment
pursuant to Fed. R. Civ. P. 60(b)(2) based on newly discovered evidence. Docket No.
162 at 1.
II. THE MOTION
Mr. Durete petitions the court to grant him relief from judgment in his criminal
case pursuant to Fed. R. Civ. P. 60(b)(2). However, Rule 60(b)(2) has no application in
this criminal case, in which no prior application for postconviction relief has been made.
See Edge, 315 F. App’x at 94-95.
Finally, to the extent Mr. Durete’s motion seeks to collaterally attack his federal
conviction and sentence, 28 U.S.C. § 2255 provides the exclusive avenue. See Baker
v. Sheriff of Santa Fe County, 477 F.2d 118, 119 (10th Cir. 1973); see also Caravalho
v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (“[t]he exclusive remedy for testing the
validity of a [federal] judgment and sentence, unless it is inadequate or ineffective, is
that provided for in 28 U.S.C. § 2255.”). When a motion contains arguments that could
be construed as a § 2255 motion,
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[D]istrict courts should not recharacterize a motion purportedly made under
some other rule as a motion made under § 2255 unless (a) the movant, with
knowledge of the potential adverse consequences of such
recharacterization, agrees to have the motion so recharacterized, or (b) the
court finds that, notwithstanding its designation, the motion should be
considered as made under § 2255 because of the nature of the relief sought,
and offers the movant the opportunity to withdraw the motion rather than
have it so recharacterized.
Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998), cited with approval in
United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000); see also Castro v.
United States, 540 U.S. 375, 376 (2003) (holding that district court “cannot
recharacterize a pro se litigant’s motion as a first § 2255 motion unless it first
informs the litigant of its intent to recharacterize, warns the litigant that this
recharacterization means that any subsequent § 2255 motion will be subject to
the restrictions on ‘second or successive’ motions, and provides the litigant an
opportunity to withdraw the motion or amend it so that it contains all the § 2255
claims he believes he has.”).
The Court will decline to recharacterize Mr. Durete’s motion as a § 2255
motion to vacate. Mr. Durete may file a motion that complies with the
requirements of § 2255 within whatever remaining time he has to file such a
motion.
Thus, considering Mr. Durete’s motion under Rule 60(b)(2), the Court
finds that Mr. Durete provides no jurisdictional basis for the Court to consider his
motion. The Court will therefore dismiss the motion for lack of jurisdiction.
Therefore, it is
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ORDERED that the Motion for Relief from Judgment [Docket No. 162] is
DENIED for lack of jurisdiction. It is further
ORDERED that defendant’s request for appointed counsel [Docket No. 166] is
DENIED as moot.
DATED November 3, 2021.
BY THE COURT:
PHILIP A. BRIMMER
Chief United States District Judge
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