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Rosado v. United States

United States District Court, D. New Jersey

September 10, 2019

RUBEN ROSADO, Petitioner,
v.
UNITED STATES, Respondent.

          MEMORANDUM OPINION

          FREDA L. WOLFSON, CHIEF U.S.D.J.

         Petitioner, Ruben Rosado (“Rosado”), is a federal prisoner who filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which the Court dismissed as untimely. Presently before the Court are two motions by Rosado: (1) a “Motion to File a Fed.R.Civ.P. Under 60(c)(1) in Light of 28 U.S.C. 2255(f)(3)-(4), ” (ECF No. 19), and (2) a motion for a status update, (ECF No. 20). For the following reasons, the motions are denied.

         Rosado filed a motion to vacate, set aside, or correct his sentence under, 28 U.S.C. § 2255, arguing that his guilty plea should be considered involuntary. (ECF No. 1.) On February 28, 2018, the Court denied Rosado's § 2255 motion as untimely, finding that Rosado's conviction became final on January 25, 2010, but that he did not file his § 2255 motion until January 28, 2015-well after the expiration of the one-year limitations period. (See ECF Nos. 9 & 10.) Rosado subsequently made various filings, which the Court construed as attempts to appeal the dismissal. (See ECF Nos. 11-13.) Accordingly, on August 14, 2018, the Court directed the Clerk to file one of these documents nunc pro tunc as a notice of appeal. (ECF No. 15.) The United States Court of Appeals for the Third Circuit denied Rosado's request for a certificate of appealability on January 23, 2019. (ECF No. 18.)

         Rosado has now filed a motion that the Court construes as an attempt to obtain relief from a judgment or order under Federal Rule of Civil Procedure 60(b). (ECF No. 19.) Rosado contends that two recent cases before the Supreme Court of the United States, Garza v. Idaho, 139 S.Ct. 738 (2019), and Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018), could permit him to raise timely § 2255 claims. (See ECF No. 19 at 1-2.) This argument is premised, however, upon Rosado's assertion of new claims for ineffective assistance of counsel allegedly arising under those cases. (See Id. at 2-6.) Specifically, Rosado contends that his trial counsel was ineffective for failing to file an appeal related to an alleged sentencing guideline miscalculation during plea negotiations. (See id.) Rosado asserts that these arguments “would relate back” and “should be consider[ed] as [a] post-judgement motion to amend.” (Id. at 2.) Rosado subsequently filed a “motion for status update, ” seemingly to bring to the Court's attention that the Supreme Court had issued its opinion in Garza.[1] (ECF No. 20.)

         Rule 60(b) permits a Court to grant relief from a final judgment on any of the following bases:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). As Rosado's argument that new Supreme Court caselaw saves his claims from being time barred does not seem to fit into any other enumerated basis, I construe his argument as seeking relief under the catch-all clause of Rule 60(b)(6).[2] Relief under this provision requires the movant to show “extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993); Cox v. Horn, 757 F.3d 113, 115 (3d Cir. 2014).

         The standard for granting relief from judgment under Rule 60(b)(6) is, ultimately, irrelevant, however, as Rosado's motion must be treated as an attempt to file a second or successive § 2255 motion. In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court found that “[u]sing Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts.” Id. at 531. Thus, when a motion asserts that “a subsequent change in substantive law is a reason justifying relief from the previous denial of a claim . . . [, ] such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly.” Id. Although Gonzalez concerned a petition for writ of habeas corpus seeking relief from a state conviction, under 28 U.S.C. § 2254, the Third Circuit has found its holding equally applicable to motions to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. See United States v. Donahue, 733 Fed.Appx. 600, 602-03 & n.3 (3d Cir. 2018).

         Thus, under Gonzalez, this Court can exercise jurisdiction over Rosado's motion “only if it [is] a true Rule 60 motion, and not an attempt to circumvent the requirements for filing a new § 2255 motion.” Id. (citing Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002). When a second or successive petition is filed in a district court, absent leave from the appropriate Court of Appeals, “the district court's only option is to ...


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