United States District Court, D. New Jersey
B. SIMANDLE U.S. DISTRICT JUDGE.
matter comes before the Court on two motions from Petitioner
Manuel Garcia (“Petitioner”). The first motion,
filed in the original criminal docket of Crim. No. 93-536,
purportedly requests relief from his sentence pursuant to
Federal Rule of Civil Procedure 60(b)(6). The second motion,
docketed as the new civil case of Civil No. 16-3576, seeks to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 in light of the U.S. Supreme Court cases
of Johnson v. United States, 135 S.Ct. 2551 (2015)
and Welch v. United States, 136 S.Ct. 1257 (2016).
For the reasons explained below, Petitioner's first
motion will be construed as a successive § 2255 petition
and dismissed for lack of jurisdiction, while the Johnson
petition will be transferred to the Court of Appeals for the
Third Circuit for consideration under 28 U.S.C. §
2255(h). The Court finds as follows:
Following a jury trial before this Court on September 29,
1994, Petitioner was convicted of using interstate commerce
facilities to commit a murder for hire, in violation of 18
U.S.C. § 1958, and was sentenced to life imprisonment on
October 4, 1994. United States v. Garcia, Crim. No.
93-536-03 (D.N.J.). Petitioner appealed, see United
States v. Garcia, App. No. 94-5647 (3d Cir.), and the
Third Circuit Court of Appeals affirmed his conviction on
July 29, 1996. United States v. Garcia, 92 F.3d 1173
(3d Cir. 1996).
June 2, 1997, Petitioner filed his initial petition to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 in this Court. [Garcia v. United
States, Civ. No. 97-2861 (D.N.J.), Docket Item 1.] The
Court denied his petition in an Opinion and Order dated July
29, 1998. [Id. at Docket Items 8 & 9.]
Petitioner sought to appeal that ruling [id. at Docket Item
12], but this Court denied his request for a Certificate of
Appealability [id. at Docket Item 14], and the Third Circuit
did the same. [Id. at Docket Item 16.]
August 13, 2001, Petitioner filed a motion seeking a
reduction of his sentence pursuant to an amendment to United
States Sentencing Guidelines § 2E1.4, which the Court
construed as a motion arising under 18 U.S.C. § 3582(c)
and denied on the merits. United States v. Garcia,
204 F.Supp.2d 790 (D.N.J. 2002).
June 27, 2005, Petitioner filed a second § 2255 petition
in this Court, seeking relief under Rules 15 and 60(b), Fed.
R. Civ. P., as well as Apprendi v. New Jersey, 530
U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220
(2005). [Garcia, Civ. No. 97-2861 (D.N.J.), Docket Item 17.]
This Court denied that petition as untimely [id. at Docket
Item 18], and Petitioner did not seek further review.
April 17, 2007, Petitioner filed a motion to reopen and
supplement his originally-filed petition for habeas corpus
and to vacate his sentence pursuant to § 2255,
Fed.R.Civ.P. 60(b), and “The All Writs Act, ” 28
U.S.C. § 1651. [Id. at Docket Item 23.] For the
reasons explained in a Memorandum Opinion dated April 9,
2008, the Court construed this motion as a successive §
2255 petition and dismissed the petition for lack of
jurisdiction. Garcia v. United States, 2008 WL
1375571 (D.N.J. Apr. 9, 2008). Petitioner requested a
Certificate of Appealability under 28 U.S.C. §
2253(c)(1), see Garcia v. United States, App. No.
08-2249 (3d Cir.), which the Third Circuit denied. [Garcia,
Civ. No. 97-2861, Docket Item 31.]
May 11, 2009, Petitioner filed in his criminal case a motion
to “set aside judgment and dismiss the indictment for
void judgment, and lack of jurisdiction.” [Garcia,
Crim. No. 93-536 (D.N.J.), Docket Item 22.] Although
Petitioner styled this motion as a Rule 60(b)(4) attack on a
void judgment, the Court found that he was in fact offering
new collateral attacks on the underlying conviction,
construed this motion as a successive § 2255 petition,
and dismissed the petition for lack of jurisdiction.
Garcia v. United States, 2009 WL 3068390 (D.N.J.
Sept. 22, 2009).
Petitioner subsequently filed two more motions seeking to
reopen his § 2255 proceedings pursuant to Rules 60(b)(6)
and (d), Fed. R. Civ. P., and Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1944). [Garcia, Civ.
No. 97-2861, Docket Item 32; Garcia, Crim. No. 93-536, Docket
Item 52.] On May 10, 2011, the Court issued a Memorandum
Opinion and Order, construing these motions as successive
§ 2255 petitions and dismissing them for lack of
jurisdiction. Garcia v. United States, 2011 WL
1792277 (D.N.J. May 10, 2011). Alternatively, the Court held
that Petitioner had not met his burden to bring a successful
independent action under Hazel-Atlas. Id. Petitioner
appealed and the Third Circuit Court of Appeals affirmed on
August 25, 2011. See United States v. Garcia, App.
No. 11-2413 (3d Cir.).
July 17, 2012, Petitioner filed an application with the Third
Circuit requesting leave to file a second or successive
petition pursuant to 28 U.S.C. §§ 2244(b) and
2255(h). In re: Manuel Garcia, App. No. 12-2977 (3d Cir.).
The Third Circuit denied this application under §
2255(h) because Petitioner did not claim to rely upon a new
rule of constitutional law and because the purported
“new evidence” that Petitioner raised in his
proposed habeas petition had already been considered and
rejected by the Third Circuit in In re: Manual Garcia, App.
No. 00-5013 (3d Cir.). To the Court's knowledge,
Petitioner has not since sought leave from the Third Circuit
to file any second or successive petitions pursuant to 28
U.S.C. §§ 2244(b) and 2255(h).
Currently pending before the Court are a “motion”
purportedly requesting relief from Petitioner's sentence
pursuant to Federal Rule of Civil Procedure 60(b)(6) and a
§ 2255 petition seeking to vacate, set aside, or correct
Petitioner's sentence in light of the U.S. Supreme Court
cases of Johnson v. United States, 135 S.Ct. 2551
(2015) and Welch v. United States, 136 S.Ct. 1257
(2016). The Court addresses each in turn.
Petitioner first filed a “motion” under Rule
60(b)(6), Fed. R. Civ. P., which was docketed on the criminal
docket. [Garcia, Crim. No. 93-536 (D.N.J.), Docket Item 71.]
In this motion, Petitioner argues, inter alia, that he is
entitled to relief from his conviction and/or sentence
because: (1) his Indictment under the RICO Statute did not
charge an offense against the United States; and (2) the
Indictment failed to charge 18 U.S.C. § 2 aiding or
abetting and to charge the proper mens rea for that charge.
[Id.] Notably, in his “opening statement to
this Honorable Court, ” Petitioner states that this
motion “is not to be Construed as a Second, or
Successive Motion, under Title 28 U.S.C. 2255, ” and
that “[t]his Motion is being filed under Rule
60-B-6.” [Id. at 2.] But Petitioner does not
explain why this is so.
Third Circuit has held that:
[I]n those instances in which the factual predicate of a
petitioner's Rule 60(b) motion attacks the manner in
which the earlier habeas judgment was procured and not the
underlying conviction, the Rule 60(b) motion may be
adjudicated on the merits. However, when the Rule 60(b)
motion seeks to collaterally attack the petitioner's