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Jiminez v. United States

November 12, 2009

PEDRO JIMINEZ, DEFENDANT,
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Yohn, J.

Memorandum

I. Introduction

Pursuant to Federal Rule of Civil Procedure 60(b)(5) and (6), Pedro Jiminez moves for relief from his conviction and sentence for possession with intent to distribute and distribution of heroin (two counts), in violation of 21 U.S.C. § 841(a)(1). Jiminez argues that he is entitled to have these two counts vacated because they are lesser-included offenses of possession with intent to distribute and distribution of heroin within 1,000 feet of a playground in violation of 21 U.S.C. § 860, for which he was also convicted and sentenced on facts arising out of the same incidents. See United States v. Jackson, 443 F.3d 293, 300-02 (3d Cir. 2006). Alternatively, in his reply to the government's response, Jiminez asks that I construe his Rule 60(b) motion as a motion for a writ of audita querela. For the reasons explained below, I will treat the instant motion as a successive habeas motion under 28 U.S.C. § 2255, which I will dismiss without prejudice.

II. Factual and Procedural History

A. Underlying Convictions and Appeals

On September 8, 2000, a jury convicted Pedro Jiminez of various drug-related offenses:

1) membership in a drug organization that conspired to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846; 2) possession with intent to distribute and distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (two counts); and 3) possession with intent to distribute and distribution of heroin within 1,000 feet of a playground in violation of 21 U.S.C. § 860 and 18 U.S.C. § 2 (two counts). On January 31, 2001, I sentenced Jiminez to 169 months in prison for each of these counts, to run concurrently. I also imposed a fine and special assessment for each count.

Jiminez appealed. On motion by Jiminez and with the agreement of the government, the Third Circuit remanded his case for resentencing to determine the specific quantity of drugs attributable to him, even though that quantity had been set forth in the pre-sentence report, which was agreed to by the defendant and the government, and whose factual findings were adopted by the court at the sentencing hearing. On remand, I concluded, based on a determination of this quantity, that Jiminez was actually eligible under the guidelines for a higher sentence than the one I initially imposed. Nonetheless, in order to give Jiminez the benefit of any possible doubt and because he and the government had not objected to the amount of heroin set forth in the presentence report at the initial sentencing or at the remand hearing, I reimposed the initial 169-month sentence.

On May 5, 2003, Jiminez filed a second direct appeal, alleging that I had improperly admitted prejudicial hearsay testimony at his trial and that I had erred in my determination of the quantity of drugs attributable to him. On October 23, 2003, the Third Circuit affirmed Jiminez's conviction and sentence.

B. Previous Habeas Petition

On January 24, 2005, Jiminez filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255. In this motion, Jiminez presented multiple claims of ineffective assistance of counsel and one claim based on the Supreme Court's decision regarding the Federal Sentencing Guidelines in United States v. Booker, 543 U.S. 220 (2005). I denied Jiminez's § 2255 motion on November 29, 2005. I found that Jiminez's ineffective assistance of counsel claims were without merit and denied his Booker claim because that decision was not retroactively applicable on collateral review. See Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Jiminez sought a certificate of appealability from the Third Circuit, which that court denied on June 9, 2006.

III. Discussion

On May 15, 2009, Jiminez submitted this pro se "Motion for Modification of Sentence Pursuant to Fed. R. Civ. P. 60(b)." The government filed a response to Jiminez's Rule 60(b) motion on August 17, 2009, and Jiminez submitted a reply on September 10, 2009. In his reply, Jiminez requested that, if Rule 60(b) is not the appropriate vehicle for his claims, the court should construe his motion as a petition for a writ of audita querela.

For the reasons that follow, I find that Jiminez's motion states a claim for habeas relief under 28 U.S.C. § 2255. Because Congress intended § 2255 to be the exclusive avenue for relief in cases such as the one at hand, Jiminez may not seek relief through either a Rule 60(b) motion or a petition for a writ of audita querela. I also conclude that offering Jiminez the option (as requested by the government), pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), to withdraw his motion, ask that it be ruled on as filed, or have the motion construed as a habeas motion under § 2255, would be pointless. Because he filed a previous § 2255 motion, which was denied on the merits, Jiminez is already barred by the AEDPA's restrictions on successive ...


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