United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
RONALD R. LAGUEUX SENIOR U.S. DISTRICT JUDGE
Before the Court is a Motion Pursuant to Fed.R.Civ.P. 60(b) to Reopen the Proceedings under 28 U.S.C. § 2255 (Doc. No. 334) ("Motion") filed by pro se Petitioner Samuel Sanchez. By the Motion, Sanchez requests that the Court reopen his previous motion to vacate under § 2255 and resentence him to a lower term of imprisonment. No hearing is necessary. For the reasons stated below, the Motion is DENIED.
On December 18, 2000, a federal grand jury sitting in the District of Rhode Island indicted Sanchez, among others, for conspiracy to commit carjacking and carjacking with death resulting, in violation of 18 U.S.C. §§ 371, 2119, and 2119(3). Sanchez pled guilty to both counts pursuant to a written plea agreement in which the government promised not to seek the death penalty. The Court sentenced Sanchez on November 7, 2002, to life imprisonment. Judgment entered on November 14, 2002.
Shortly thereafter, Sanchez filed a timely Notice of Appeal, and the Court of Appeals for the First Circuit affirmed the Judgment on January 7, 2004. Its Mandate issued on January 29, 2004. The U.S. Supreme Court denied certiorari.
On May 31, 2005, Sanchez filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1 in C.A. 05-240L). The Court, in a one-page Memorandum and Order dated September 28, 2005, found the motion totally devoid of merit and denied Sanchez’s § 2255 motion. (Doc. No. 10 in C.A. 05-240L). Sanchez filed an Notice of Appeal of the denial. (Doc. No. 13 in C.A. 05-240L). The First Circuit treated the appeal as a request for a Certificate of Appealability (“COA”) and denied the request on February 22, 2007. The Court’s Mandate issued on April 11, 2007. (Doc. No. 22 in C.A. 05-240L).
Sanchez subsequently sought certification from the First Circuit allowing him to file a second or successive § 2255 petition in this Court. (Doc. #307). The Circuit denied permission on September 20, 2010, because Sanchez failed to meet the requisite showing. (Doc. #307).
Sanchez now seeks relief pursuant to Federal Rule of Civil Procedure 60(b). Although he does not specify under which subsection he is moving, it is evident from the Motion that he is invoking § (b)(6), “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). Sanchez asks the Court to reopen his prior § 2255 petition, which the Court denied and for which the First Circuit denied a COA, and resentence him to a lower term of imprisonment. Motion at 1. He relies on a recent Supreme Court decision, Rosemond v. United States, 134 S.Ct. 1240 (2014), and an opinion from the Eastern District of New York, United States v. Holloway, 95-CR-78 (JG), 01-CV-1017 (JG), 2014 U.S. Dist. LEXIS 102707 (E.D.N.Y. July 28, 2014), in support of the Motion. Motion at 1.
In brief, under Rosemond, Sanchez argues that he had no advance knowledge that one of his co-defendants had a firearm and would use it to kill the victims and that, had the killing not occurred, he would have received a “significantly lower sentence.” Id. at 5; see also id. at 13 (“Sanchez received a seven point enhancement for a firearm in which he had no knowledge would be carried and/or used in the underlying offense. Moreover, the Court increased Sanchez’s base offense level by three additional levels thereby placing him in the guideline range of life. Without these enhancements, Sanchez’s sentence would have been significantly lower.”). Further, Sanchez contends that Rosemond “is a new substantive and watershed rule of constitutional law, and therefore, should apply retroactively on collateral review.” Id. at 5. Pursuant to Holloway, Sanchez seeks resentencing based on “his age at the time of the offense, his rehabilitation, the number of years he has now been incarcerated, and his ability to be returned to society without again offending.” Id. at 5. The Government responds that Sanchez’s Motion is not (despite its title) a Rule 60(b) motion, but, rather, constitutes a second or successive § 2255 motion for which Sanchez has neither sought nor received permission from the First Circuit to file. Government’s Response to Defendant’s Motion Pursuant to Fed.R.Civ.P. 60(b) to Reopen the Proceedings under 28 U.S.C. § 2255 (Doc. No. 336) at 4.
In Munoz v. United States, 331 F.3d 151 (1st Cir. 2003), the First Circuit addressed the distinction between a Rule 60(b) motion and a motion to vacate pursuant to § 2255. Id. at 152. The court, relying on an earlier case in which it had dealt with the issue in the context of 28 U.S.C. § 2254, applied the same reasoning in a § 2255 setting. Id. (citing Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003)).
We hold, therefore, that a motion made under Rule 60(b) of the Federal Rules of Civil Procedure for relief from a judgment previously entered in a section 2255 case should be treated as a second or successive habeas petition if-and only if-the factual predicate set forth in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction. If, however, the factual predicate set forth in support of the motion attacks only the manner in which the earlier habeas judgment has been procured[, ] the motion may be adjudicated under the jurisprudence of Rule 60(b).
Id. at 152-53 (alteration in original)(internal citations and quotation marks omitted).
It is clear from reading Sanchez’s Motion that it is a second or subsequent § 2255 motion and, therefore, must be treated as such. See id. at 153; see also Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008)(noting that any motion filed in the district court that imposed the sentence and that is substantively within the scope of § 2255 ¶ 1 “is a motion under § 2255, no matter what title the prisoner plasters on the cover”); Munoz, 331 F.3d at 153 (rejecting characterization of motion as a Rule 60(b) motion because “the petitioner challenges the constitutionality of his underlying conviction and argues the merits of his foundational sentencing claims ...”). Tellingly, Sanchez asks the Court ...