United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING RULE 60(B)
E. HUDSON UNITED STATES DISTRICT JUDGE
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).
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). 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.)
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).
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)).
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
Salas's Rule 60(b) Motion (ECF No. 182) will be denied. A
certificate of appealability will be denied.
appropriate Order will accompany this Memorandum Opinion.
 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
(4) the judgment is void.
Fed. R. Civ. P. 60(b)(4).