United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Frank Gutierrez's Motion for Relief Under
Fed.R.Civ.P. 60(b). (09-cr-0760, Doc. 180; 16-cv-1218, Doc.
7.) Mr. Gutierrez seeks reconsideration of the order
dismissing his successive 28 U.S.C. § 2255 habeas corpus
petition for lack of jurisdiction. Having considered the
arguments and the record, the Court will deny the Motion.
April 20, 2010, Mr. Gutierrez was convicted by a jury of
possession with intent to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. (Doc.
94.). Judgment was entered on the conviction
on June 14, 2011. (Doc. 104.) Gutierrez appealed to the Tenth
Circuit, which affirmed the Judgment. (Doc. 133.) Gutierrez
filed a Petition for Writ of Certiorari, which the United
States Supreme Court denied on April 15, 2013. (Docs. 135;
filed his first 28 U.S.C. § 2255 motion on March 30,
2014. (Doc. 138.) He alleged he received ineffective
assistance of counsel during trial and on appeal.
(Id.) The Magistrate Judge entered proposed findings
and a recommended decision on January 27, 2015. (Doc. 151.)
By an Order entered March 2, 2015, the Court dismissed the
motion on the merits. (Docs. 153; 155.)
then filed a Motion to Enforce Order, which raised a claim
relating to police misconduct in violation of Brady v.
Maryland, 373 U.S. 83 (1963). (Doc. 156.) The Court
denied the Motion and advised Gutierrez that the only remedy
for a post-conviction Brady claim was under 28
U.S.C. § 2255. (Doc. 157.) Gutierrez appealed, and the
Tenth Circuit affirmed the decision on April 7, 2016. (Docs.
then filed a motion with the Tenth Circuit seeking
authorization to file a second 28 U.S.C. § 2255 habeas
claim based on Johnson v. United States, 135 S.Ct.
2551 (2015). (Docs. 168; 169.) The Tenth Circuit
denied authorization on July 14, 2016, finding
Johnson did not impact his sentence. (Doc. 169.)
About four months later, Gutierrez filed a successive §
2255 motion in this Court. (Doc. 170.) He alleged: (a) the
Court failed to consider factors associated with U.S.S.G.
§ 3B1.2; (b) the prosecutors violated Brady
requirements; and (c) the District Court refused to enforce
its discovery orders. (Doc. 170.) By a Memorandum Opinion and
Order entered November 17, 2016, the Court dismissed the
motion as second or successive. (Docs. 174; 175.)
filed the instant Motion to reconsider on February 9, 2018.
(Doc. 180.) He seeks relief “because the Court
mistakenly believed” he filed one or more § 2255
motions seeking relief under Johnson. (Id.
at 1.) He observes the mistake may be inadvertent, but he
tends to believe the Court was “conceal[ing] the Fraud,
Corruption and . . . use of false evidence . . . in this
case.” (Id.) Gutierrez also continues to argue
the merits of his § 2255 claims. He contends the
conviction and sentence resulted from Brady
violations, corrupt border patrol agents and prosecutors, and
a misinterpretation of U.S.S.G. § 3B1.2.
60(b) relief is available in § 2255 proceedings, but it
“cannot be used to circumvent restraints on successive
habeas petitions.” See Lopez v. Douglas, 141
F.3d 974, 975 (10th Cir. 1998). When a Rule 60(b) motion
follows a habeas ruling, courts scrutinize whether the
requested relief is tantamount to a second or successive
petition. See United States v. Nelson, 465 F.3d
1145, 1147 (10th Cir. 2006) (“It is the relief sought,
not his pleading's title, that determines whether the
pleading is a” successive habeas petition). A motion is
successive “if it in substance or effect asserts or
reasserts a federal basis for relief from the
petitioner's underlying conviction.” Spitznas
v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006).
“Conversely, it is a ‘true' 60(b) motion if
it either (1) challenges only a procedural ruling of the
habeas court which precluded a merits determination of the
habeas application, . . . or (2) challenges a defect in 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.” Id. at 1215-16.
Motion raises some procedural defects in the prior habeas
proceedings, but it primarily attacks Gutierrez's
conviction and sentence. Consistent with Spitznas,
the Court will therefore treat the motion as
“mixed” and address the Rule 60(b) arguments
separately from the successive habeas claims. See
464 F.3d at 1217.
for relief under Rule 60(b) include mistake, inadvertence,
surprise, excusable neglect, newly discovered evidence, and
fraud. See Fed. R. Civ. P. 60(b)(1)-(6). Rule
60(b)(6) also contains a catchall clause for “any other
reason that justifies relief.” However, Rule 60(b)(6)
relief is “extraordinary, ” “difficult to
attain, ” and only “appropriate . . . when it
offends justice to deny such relief.” Zurich N. Am.
v. Matrix Serv., Inc., 426 F.3d 1281, 1289, 1293 (10th
Motion does not meet these standards. The primary procedural
defect Gutierrez identifies is that the Court misanalysed his
earlier § 2255 motion under Johnson. (Doc. 180
at 7.) However, none of this Court's dismissal orders
were based on Johnson. (See Docs. 151; 153;
174.) The Tenth Circuit analyzed the Johnson claim
in its order denying authorization to file a successive
habeas claim. (Doc. 169.) This Court cannot grant relief from
a Tenth Circuit ruling. Gutierrez also appears to challenge
the dismissal of his most recent successive § 2255
motion on the grounds that this “Court could have
considered it without authorization” based on the
interests of justice. Such argument is inconsistent with the
habeas statute and Tenth Circuit law. See 28 U.S.C.
§ 2244(b); In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008). Rule 60(b) relief is, therefore,
extent Gutierrez continues to challenge his conviction and
sentence, these arguments constitute successive habeas
claims. As the Court previously explained, the
“district court does not have jurisdiction to address
the merits of a second or successive [habeas] . . . claim
until [the Tenth Circuit] has granted the required
authorization” to proceed. Cline, 531 F.3d at
1251; see also 28 U.S.C. § 2244(b) (requiring a
second or successive § 2254 petition to be certified by
the appropriate court of appeals). When the motion is filed
without authorization, the district court has discretion to
either transfer the matter to the Tenth Circuit in the
interests of justice, or dismiss the matter for lack of
jurisdiction. Cline, 531 F.3d at 1252. Factors to
consider in evaluating a transfer include: “whether the
claims would be time barred if filed anew ...