United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER comes before the Court on Petitioner's
pro se “Motion to Reopen his Initial 28 U.S.C.
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence,
” in which he purports to seek relief under Rule
60(b). (Doc. No. 1). For the reasons that follow,
the Court finds that the motion is an unauthorized,
successive petition, which must be dismissed for lack of
was convicted at trial of conspiracy to distribute cocaine
and cocaine base, and various related drug trafficking
offenses. The Fourth Circuit Court of Appeals described his
offenses as follows:
… Alomia-Torres was the leader of a major drug
conspiracy that was based primarily in Charlotte and
Winston-Salem, North Carolina, from 1989-1996. Most of the
co-conspirators were from the same neighborhood in Colombia.
The conspirators imported cocaine from Colombia to Ecuador
and distributed it in North Carolina, Georgia, Texas, and New
York. The conspiracy involved over twenty people, and
Alomia-Torres was held responsible for distributing in excess
of 300 kilograms of cocaine.
United States v. Alomia-Torres, 215 F.3d 1321, 1321
(4th Cir. 2000) (unpublished).
Court sentenced him to life imprisonment and the Fourth
Circuit Court of Appeals affirmed on June 5, 2000.
2001, Petitioner filed a Motion to Vacate pursuant to 28
U.S.C. § 2255, in which he alleged that his sentence
violates Apprendi v. New Jersey, 530 U.S. 466
(2000), and that counsel provided ineffective assistance at
trial and on direct appeal. (3:01-cv-301, Doc. No. 1). The
Court denied the Motion to Vacate on the merits,
(3:01-cv-301, Doc. No. 12), and the Fourth Circuit dismissed
his appeal for lack of prosecution. United States v.
Alomia-Torres, No. 03-7478 (4th Cir. Feb. 5,
2006, Petitioner filed in the criminal case a Rule 60(b)
motion for relief from his criminal judgment that the Court
dismissed without prejudice as an unauthorized, successive
§ 2255 motion to vacate. (3:97-cr-40, Doc. No. 486,
491). The Fourth Circuit dismissed Petitioner's appeal as
untimely. United States v. Alomia-Torres, 286
Fed.Appx. 11 (4th Cir. 2008); United States v.
Alomia-Torres, 341 Fed.Appx. 863 (4th Cir.
2012, Petitioner filed a Rule 60(b)(4) motion in his §
2255 case, arguing that his criminal judgment was void, and
it was opened as a new civil case, number 3:13-cv-422.
See (3:01-cv-301, Doc. No. 21). Petitioner again
raised an Apprendi claim and attacked his criminal
judgment. The Court construed the Rule 60(b) motion as an
unauthorized successive § 2255 Motion to Vacate and
dismissed without prejudice. Alomia-Torres, 2013 WL
3967685 (W.D. N.C. Aug. 1, 2013). The Fourth Circuit
dismissed Petitioner's appeal and denied him
authorization to file a successive § 2255 motion.
United States v. Alomia-Torres, 555 Fed.Appx. 276
(4th Cir. 2014).
filed the instant “Motion to Reopen His Initial 28
U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct
Sentence” on February 26, 2018. (Doc. No. 1). He argues
that the Court, in his original § 2255 proceeding,
inadvertently or mistakenly concluded that Apprendi
did not apply to his case.
to 28 U.S.C. § 2255, a prisoner in federal custody may
move the court which imposed his sentence to vacate, set
aside, or correct the sentence if it was imposed in violation
of federal constitutional or statutory law, was imposed
without proper jurisdiction, is in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). However, “[a] second
or successive motion must be certified...by a panel of the
appropriate court of appeals to contain” either:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would ...