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Alomia Torres v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 26, 2018

JUAN BAUTISA ALOMIA TORRES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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).[1] (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 jurisdiction.

         I. BACKGROUND

         Petitioner 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United States v. Alomia-Torres, 215 F.3d 1321, 1321 (4th Cir. 2000) (unpublished).

         The Court sentenced him to life imprisonment and the Fourth Circuit Court of Appeals affirmed on June 5, 2000. Id.

         In 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, 2004).

         In 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. 2009).

         In 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).

         Petitioner 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.

         II. LEGAL STANDARDS

         Pursuant 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 ...

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