United States District Court, D. New Mexico
AMENDED MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
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.
September 22, 2011, Peralta was charged by Information with
(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. §
(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.) 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.)
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.)
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.)
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
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 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 ...