Opinion
13-CV-4334 (ARR)
08-13-2013
NOT FOR PRINT OR
ELECTRONIC PUBLICATION
OPINION AND ORDER
ROSS, United States District Judge:
On July 19, 2013, petitioner Dante Lizalde, proceeding pro se, filed the instant "Motion to Vacate Void Judgment Pursuant to Federal Rules of Civil Procedures Rule 60(b)(4)" seeking to vacate his 2000 criminal conviction. For the reasons discussed below, the court transfers the motion to the United States Court of Appeals for the Second Circuit as second or successive.
DISCUSSION
In 1998, following a trial before this court, a jury found petitioner guilty of conspiring to distribute and to possess with intent to distribute cocaine, conspiring to import cocaine, and aiding and abetting the possession of cocaine with intent to distribute. See United States v. Lizalde, No. 97-cr-649 (ARR). On May 24, 2000, this court issued a judgment of conviction, sentencing petitioner to three concurrent terms of 292 months imprisonment. The Second Circuit subsequently affirmed that judgment, United States v. Lizalde, 38 F. App'x 657 (2d Cir. 2002), and the United States Supreme Court denied petitioner's application for a writ of certiorari on October 2, 2002, Lizalde v. United States, 537 U.S. 1059 (2002).
Subsequent to his judgment of conviction becoming final, petitioner filed two motions to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The first of these, which was timely filed in 2003, was denied on the merits in March 2004. Lizalde v. United States, No. 03-CV-4733 (ARR), slip op. at 1, 20 (E.D.N.Y. Mar. 29, 2004). Petitioner attempted to appeal the denial of this motion, but the Second Circuit denied his application for a certificate of appealability on October 29, 2004. See Lizalde v. United States, No. 04-3664-pr (2d Cir. Oct. 29, 2004).
Petitioner's second § 2255 motion was filed in January 2006. In an Opinion and Order dated February 28, 2006, this court found that it could not entertain that motion until petitioner obtained the Second Circuit's permission to file a second or successive § 2255 motion. See Lizalde v. United States, No. 06-CV-880 (ARR), slip op. at 2 (E.D.N.Y. Feb. 28, 2006). Following the procedure set forth in Liriano v. United States, 95 F.3d 119 (2d Cir. 1996), this court transferred that motion to the Second Circuit, which subsequently denied petitioner's application to file a second or successive motion. See Lizalde v. United States, No. 06-1025-op (2d Cir. Sept. 26, 2006).
In November 2007, petitioner again sought to vacate his conviction and filed a"Motion to Vacate Judgment for Lack of Jurisdiction pursuant to [Fed. R. Civ. P.] 60(b)(6)" ("the Motion"). By Opinion and Order dated December 6, 2007, this court liberally construed the Motion as a second or successive motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and transferred the petition to the Second Circuit for the reasons set forth by this court in Lizalde v. United States, 06-CV-880 (ARR). See Lizalde v. United States, No. 07-CV-5082 (ARR), slip op. at 3 (E.D.N.Y. Dec. 6, 2007). The Second Circuit subsequently denied petitioner's application to file a second or successive motion. Lizalde v. United States, Nos. 07-5521-op and 08-0164-op (2d Cir. May 28, 2008).
Five years later, petitioner again attempts to vacate his 2000 conviction by filing the instant "Motion to Vacate Void Judgment Pursuant to Federal Rules of Civil Procedures Rule 60(b)(4)." The motion seeks to vacate the conviction and sentence on the grounds that it is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. For the same reasons set forth by this court in Lizalde v. United States, No. 07-CV-5082 (ARR), the court construes the instant motion as a second or successive motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, rather than a Rule 60(b) motion. See Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) ("[R]elief under Rule 60(b) is available . . . only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction. Accordingly, the court transfers the motion to the Second Circuit pursuant to 28 U.S.C. § 2244(a)(3)(A). See Johnson v. United States, 623 F.3d 41, 43 (2d Cir. 2010); Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003) (district court has no power to entertain a second or successive § 2255 motion unless the appropriate Court of Appeals has authorized the filing of that motion); Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996).
CONCLUSION
For the foregoing reasons, the Clerk of Court is directed to transfer the instant motion to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 2244(a)(3)(A). If the Second Circuit authorizes petitioner to proceed in this matter, petitioner shall move to reopen this proceeding under this docket number. The Clerk of Court shall close this case.
SO ORDERED.
________________________
Allyne R. Ross
United States District Judge
Dated: August 13, 2013
Brooklyn, New York
Service List:
Dante Lizalde
85982-080
Federal Correctional Institution at La Tuna
P.O. Box 3000
Anthony, NM 88021