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United States v. Peralta

United States District Court, D. New Mexico

November 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SAUL PERALTA Defendant.

          AMENDED MEMORANDUM OPINION AND ORDER [1]

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         Before the Court is Saul Peralta's Motion for Relief Under Fed.R.Civ.P. 60(b). (11-cr-2525, Doc. 82; 15cv1186, Doc. 13; 16-cv-0729, Doc. 12.) Peralta seeks reconsideration of the order dismissing his habeas corpus petition under 28 U.S.C. § 2255. Having considered Peralta's arguments and the record, the Court will deny the Motion.

         A. Background

         On September 22, 2011, Peralta was charged by Information with three counts:

(1) Count I - Possession with intent to distribute five or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;
(2) Count II - Carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and
(3) Count III - Felon in possession of a firearm in and affecting commerce in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2).

(Doc. 18.[2]) Peralta pled guilty to all three counts. (Doc. 21.) The Court adopted the presentence report (PSR) findings and, on April 2, 2012, sentenced Peralta to 152 months imprisonment followed by a four-year term of supervised release. (Doc. 47.) The Court entered Judgment on September 10, 2012. (Doc. 48.)

         Peralta filed his first pro se 28 U.S.C. § 2255 motion on February 1, 2016. (Doc. 59.) He sought relief under Johnson v. United States, 135 S.Ct. 2551 (2015), arguing that his prior convictions should be corrected and that he was “enhanced for crimes that are not violent.” (Id. at 1.) By a Memorandum Opinion and Order entered March 16, 2016, the Court found Peralta was not enhanced under the residual clause or any other provision of § 924(e). (Doc. 66.) Instead, he was charged as a felon in possession of a firearm in or affecting commerce under the provisions of 18 U.S.C. § 922(g). (Id.) The Court, therefore, dismissed the § 2255 petition under Habeas Corpus Rule 4. (Id.)

         About three months later, the Court appointed counsel for Peralta pursuant to its blanket order directing a “Johnson Eligibility Review.” (Doc. 70.) Peralta filed a second § 2255 motion through counsel on June 27, 2016. (Doc. 71.) Counsel argued that Peralta's conviction for “aggravated fleeing from a law enforcement” did not qualify as a predicate “crime of violence” under Johnson. (Id.) By an order entered August 23, 2016, the Court dismissed the second § 2255 motion as second or successive. (Doc. 77.)

         Peralta filed the instant Motion to reconsider on January 2, 2018. (Doc. 82.) He argues: (1) the Court misconstrued his argument in his original § 2255 motion; and (2) counsel rendered ineffective assistance in connection with the § 2255 motion.

         B. Discussion

         Rule 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.

         Peralta's motion primarily raises procedural defects in the prior habeas proceedings. However, he continues to argue he should not have been sentenced as a career offender. Consistent with Spitznas, the Court will therefore treat the motion as “mixed” and address the Rule ...


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