United States of America v. Rafael Guereca, also known as RODOLFO GARCIA

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2008∗
Decided June 4, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 07-3768
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAFAEL GUERECA, also known as RODOLFO
GARCIA,
Defendant-Appellant.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 92 CR 326
Harry D. Leinenweber, Judge.
Order
Almost a decade after we affirmed his conviction on direct appeal, 79 F.3d 74
(7th Cir. 1996), Rafael Guereca filed in the criminal case what he styled a motion for
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-3768 Page 2
relief from judgment under Fed. R. Civ. P. 60(b). The district court denied this motion,
and Guereca has appealed.
If this is indeed a motion in the criminal case, then the appeal is untimely,
because the defendant had only 10 days to appeal in a criminal proceeding, see Fed. R.
App. P. 4(b), and Guereca took more than 40.
Guereca appears to have confused criminal with civil proceedings. Civil Rule
60(b) applies only to civil cases; it has no operation in criminal prosecutions. If Guereca
had filed a collateral attack under 28 U.S.C. §2255, a proceeding classified as civil, then
he might have been able to use Civil Rule 60(b) to reopen the judgment. (We say
“might” because many motions nominally under Rule 60(b) are properly classified as
successive collateral attacks, which district judges may not entertain without prior
approval by this court. See Gonzalez v. Crosby, 545 U.S. 524 (2005).) But Guereca has not
commenced a proceeding under §2255, so this motion must have been in the criminal
case.
The “Rule 60(b) motion” probably should have been treated as a motion under
§2255, see Melton v. United States, 359 F.3d 855 (7th Cir. 2004), but the district judge did
not give Guereca the warning required by Castro v. United States, 540 U.S. 375 (2004).
Because the motion thus remained one in the criminal case, the appeal must be
dismissed for lack of jurisdiction. The appeal would be dismissed even if we were to
apply the 90-day civil period, because if this proceeding were deemed a collateral attack
Guereca would need a certificate of appealability, see West v. Schneiter, 485 F.3d 393 (7th
Cir. 2007), and he does not meet the statutory standards for one. Guereca should
understand, moreover, that the time limit for a proper §2255 motion has long since
expired, and that there is no point in filing such a motion in the district court unless the
criteria of §2255(f) are satisfied.
APPEAL DISMISSED.

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