Acevedo-Munoz v. United States of America

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Case 2:12-cv-00198-ABJ Document 13 Filed 08/16/17 Page 1 of 7

2017 AUG

STEPHAN HARRIS, CLERK

CHEYENNE °

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
DAGOBERTO ACEVEDO-MUNOZ.
Plaintiffs).
VS. Case No. 12-CV-00198-J

UNITED STATES OF AMERICA,

Defendant(s).

OPINION AND ORDER

On February 27, 2015, Dagoberto Acevedo-Munoz ("Defendant") filed a motion under
Rules 60(b)(6) and 60(d)(1). Fed. 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. #9) [Rule
60 motion] and (Dkt. #7. 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 Rule 60 motion that now concerns the court was filed.

BACKGROUND

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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On May 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. 8§ 846 and 841(a)(1) and (b)(1)(A) and conspiracy to import
methamphetamine in violation of 21 U.S.C. §§ 960(a)(1) and (b)(1)(1). See Criminal Docket.
Case No. 10-CR-00137-ABJ-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 fificen 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.") § 3B1.1©). Finally, defendant stipulated that
he knew the methamphetamine in the criminal activity was unlawfully imported from Mexico
requiring another adjustment of 2 levels under U.S.S.G, § 2D1.1(b)(4). At his change of plea
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

' A certified Spanish language interpreter assisted the court and the defendant during the

change of plea and sentencing hearing (COP Trans. at 2; Sent. Trans. at 3). Defendant received
the Plea Agreement that was a certified translation from [:nglish to Spanish (Cr. Dkt # 42-2).

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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. at 6.

On 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
iis promise the government recommended a low end guideline sentence, but after hearing the
defendant's argument fora variance, the government agreed it would be unfair to sentence him
to a sentence higher than that received by his co-defendants. i.c. 262 months. The government
recommended a 262 month sentence. stating that such a sentence would fairly represent the
factors set forth in 18 U.S.C. § 3553(a) (Sent. Trans. at 6, 16-17).

After 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 IH] 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

we)

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the entry of judgment (Sent. Trans. at 24). The Judgment and Commitment was filed on
December 10. 2010 (Cr. Dkt. #55).

Nothing transpired in the defendant’s case until Mr. Acevedo wrote to the court to
inquire whether his counsel had filed an appeal (Cr. Dkt. #56). Approximately nineteen months
had passed following entry of the Judgment and Commitment. Defendant filed 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 cight months past the
expiration of § 2255(1)(1)’s one year limitation period. and the Defendant had not established
circumstances to justify excusing his untimeliness under the doctrine of equitable tolling (Dkt.
# 6 at 12-19).

On July 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 cight
months late for purposes of § 2255's one year limitation period (/d. 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 time (/d., at 2).

Twenty months passed following entry of the July 1, 2013. order and judgment

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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..

DISCUSSION

A motion under led. 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 rom the petitioner's underlying conviction.
See Gonzales v. Crosby, 125 S.Ct. 2641, 2651 (2005); Sptznas v. Boone, 464 1.3d 1213. 1215
(10" 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 cither 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(1 0th 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

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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 (10"
Cir. 2006) (unadjudicated 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 ofa second or successive § 2255 motion. and it should be treated accordingly. /7 re
Pickard. 681 ¥°.3d at 1206: United States v. Espinoza. 622 ¥.App’x 745, 747 (10" Cir. 2015).

Defendant's 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 (10" 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. fd, see also
United States v. Garcia-Rodriquez. 516 .App’x 704, 706 (10" Cir. 2013).

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Relief under Rule 60(b) is discretionary and is warranted only in exceptional
circumstances. VanSkiver v. United States, 952 ¥.2d 1241, 1243 (10" Cir. 1991). Defendant
offers in support of the Rule 60 motion the same arguments that were put forward in the
original § 2255 motion, Ile 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.

Finally. 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 mut 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 delay the Rule 60 motion is not timely. See
United States v. Mack. 502 F. App’x 757, 759-60 (10" Cir. 2012).

IT IS ORDERED that defendant's Motion Seeking Relief from the Judgment Pursuant

to Rule 60(b)(6) and 60(d)(1) should be and the same are DENIED.

TA
Dated this 16 "ay of August, 2017

Lotte Z # —. ‘a Lee

Alan B. Johnson
United States District an