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United States v. Salas

United States District Court, E.D. Virginia, Richmond Division

May 24, 2018

UNITED STATES OF AMERICA,
v.
MARIO SALAS, Petitioner.

          MEMORANDUM OPINION (DENYING RULE 60(B) MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         By Memorandum Opinion and Order entered on January 29, 2002, the Court denied a motion under 28 U.S.C. § 2255 ("§ 2255 Motion") filed by Petitioner Mario Salas. (ECF Nos. 128-29.) On July 11, 2003, the United States Court of Appeals for the Fourth Circuit dismissed Salas's appeal of this denial. United States v. Salas, 68 Fed.Appx. 484, 484 (4th Cir. 2003).

         On March 1, 2018, the Court received from Salas "PETITIONER'S MOTION UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b)(4)" ("Rule 60(b) Motion, " ECF No. 182).[1] In his Rule 60(b) Motion, Salas argues that the Court's prior denial of his § 2255 Motion is void because the Court's rejection of Salas's argument pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), "was based on the erroneous beli[ef] that for purposes of Section 2255 ... the one-year limitation period started to run when the Fourth Circuit affirmed Salas['s] conviction." (Rule 60(b) Mot. 3.)

         A party seeking relief under Federal Rule of Civil Procedure 60(b) must make a threshold showing of "timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances." Dow ell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party satisfies this threshold showing, "he [or she] then must satisfy one of the six specific sections of Rule 60(b)." Id. (citing Werner, 731 F.2d at 207).

         Under Federal Rule of Civil Procedure 60(c)(1), Salas was required to file his motion within a reasonable time after the entry of the January 29, 2002 Memorandum Opinion and Order. Fed.R.Civ.P. 60(c)(1) ("A motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding."). Salas's Rule 60(b) Motion, filed over sixteen years after the entry of the challenged judgment, was not filed in a reasonable time. See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) ("We have held on several occasions that a Rule 60(b) motion is not timely brought when it is made three to four months after the original judgment and no valid reason is given for the delay." (citing Cent. Operating Co. v. Utility Workers of Am., 491 F.2d 245 (4th Cir. 1974); Consol. Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249 (4th Cir. 1967))). Moreover, Rule 60(b) is an extraordinary remedy requiring a showing of exceptional circumstances. May field v. Nat'lAss'nfor Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citing Ackermann v. United States, 340 U.S. 193, 202 (1950)).

         Instead of arguing why his Rule 60(b) Motion should be considered timely, Salas argues that the Court should not construe his Rule 60(b) Motion as a successive § 2255 motion. (Rule 60(b) Mot. 4-7.) Salas also argues that the Court's prior dismissal of his § 2255 Motion was incorrect because the Court found that his judgment became final on the day the Fourth Circuit affirmed his conviction on appeal, and therefore Apprendi was inapplicable. (Id. at 3, 8.) Thus, Salas fails to offer any persuasive argument as to why this Court should find that his Rule 60(b)(4) was filed within a reasonable time. Cf. Fortune v. Clarke, 712 Fed.Appx. 296, 297 (4th Cir. 2018) (explaining that determination of timeliness of a Rule 60(b) motion is discretionary not jurisdictional). Salas also fails to demonstrate any such extraordinary circumstances that would warrant vacating the prior dismissal of his § 2255 Motion.[2]

         Accordingly, Salas's Rule 60(b) Motion (ECF No. 182) will be denied. A certificate of appealability will be denied.

         An appropriate Order will accompany this Memorandum Opinion.

---------

Notes:

[1] Federal Rule of Civil Procedure 60(b)(4) provides, in pertinent part:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(4) the judgment is void.

Fed. R. Civ. P. 60(b)(4).


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