United States District Court, D. New Mexico
MATTER is before the Court on the pro se
Movant Richard Anthony Nevarez-Barela's Motion Under Rule
60 of the Federal Rules of Civil Procedure. (CV Doc. 1; CR
Doc. 114) (âMotionâ). The Court has also reviewed the docket
in Nevarez-Barela's criminal No. CR 17-00862 KG.
threshold matter, the Court must determine whether
Nevarez-Barela's Motion is a “true” Rule
60(b) motion or, instead, a 28 U.S.C.§ 2255 motion to
vacate, set aside, or correct a sentence. See Gonzalez v.
Crosby, 545 U.S. 524 (2005); Spitznas v. Boone,
464 F.3d 1213, 1215 (10th Cir. 2006). Under
Gonzalez, a 60(b) motion is a § 2255 petition
if it in substance or effect asserts a federal basis for
relief from the petitioner's underlying conviction or
sentence. See 545 U.S. at 532, 538. Conversely, it
is a “true” 60(b) motion if it either (1)
challenges only a procedural ruling of the court which
precluded a merits determination in a prior § 2255
motion or (2) challenges a defect in the integrity of the
§ 2255 proceeding, provided that such a challenge does
not itself lead inextricably to a merits-based attack on the
disposition of a prior petition. Id. at 538.
Fed.R.Civ.P. 60(b) may not be used to challenge the merits of
the movant's underlying criminal conviction or sentence.
Id. at 532, 538; Spitznas, 464 F.3d at
Motion, Nevarez-Barela asks the Court to vacate the guilty
plea he entered on March 30, 2017 and to dismiss all charges,
complaints, indictments, or information in his criminal case.
(CV Doc. 1 at 1; CR Doc. 114 at 1). As grounds for relief, he
claims that his court-appointed counsel, the Attorneys
General, and the Judges in his criminal case conspired and
participated in a scheme to defraud the Court. (CV Doc. 1 at
1-3; CR Doc. 114 at 1-3). Nevarez-Barela's claims
challenge his underlying conviction and sentence, rather than
a procedural defect in a prior § 2255 proceeding.
may only challenge his conviction and sentence by a motion
under 28 U.S.C. § 2255. See 28 U.S.C. §
2255(a) and (e); Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996) (“The exclusive remedy for
testing the validity of a judgment and sentence, unless it is
inadequate or ineffective, is that provided for in 28 U.S.C.
§ 2255”). Therefore, the Court intends to
recharacterize Nevarez-Barela's' Motion Under Rule 60
of the Federal Rules of Civil Procedure as a first 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct
sentence. Pursuant to Castro v. United
States, 540 U.S. 375 (2003), when
a court recharacterizes a pro se litigant's motion as a
first § 2255 motion . . .the district court must notify
the pro se litigant that it intends to recharacterize the
pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject
to the restriction on “second or successive”
motions, and provide the litigant an opportunity to withdraw
the motion or to amend it so that it contains all the §
2255 claims he believes he has.
Id. at 383. Consistent with Castro, the
Court notifies Nevarez-Barela that it intends to
recharacterize his Motion as a § 2255 motion and afford
him an opportunity to withdraw the motion or to amend it to
add additional claims he may have. See Rule 2 of the
Rules Governing Section 2255 Proceedings for the United
States District Courts (providing that a motion to vacate,
set aside, or correct sentence must: “(1) specify all
grounds for relief available to the moving party; (2) state
the facts supporting each ground; (3) state the relief
requested; (4) be printed, typewritten, or legibly
handwritten; and (5) be signed under penalty of perjury by
the movant or by a person authorized to sign it for the
movant.”). If Nevarez-Barela fails to timely amend or
withdraw his Motion, then Nevarez-Barela's Motion will be
recharacterized and any subsequent § 2255 motions will
be subject to the restriction on “second or
successive” motions in 28 U.S.C. §§ 2244 and
IS ORDERED that Movant Richard Anthony
Nevarez-Barela is GRANTED leave to amend or
withdraw his Motion Under Rule 60 of the Federal Rules of
Civil Procedure (CV Doc. 1; CR Doc. 114), which the Court
intends to recharacterize as a motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255, within
twenty-one (21) days of the entry of this Order.
IS FURTHER ORDERED that the Clerk of the Court
MAIL a copy of this Order, together with a
form § 2255 motion and instructions, to Movant
 Nevarez-Barela filed a prior §
2255 motion, but voluntarily withdrew the motion. (CR Doc.
105, 108, 109). Therefore, the Court does not construe his
current Motion as a second ...