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Thomas Marmolejos v. Ronnie R. Holt

December 21, 2012

THOMAS MARMOLEJOS, PETITIONER
v.
RONNIE R. HOLT, RESPONDENT



The opinion of the court was delivered by: (Judge Caputo)

MEMORANDUM

I. Introduction

On October 19, 2011, Petitioner Thomas Marmolejos, an inmate formerly housed at the United States Penitentiary at Canaan (USP-Canaan),*fn1 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 Mr. Marmolejos asserts that the Bureau of Prisons (BOP) is relying upon "erroneous information in [his] Presentence Investigation Report (PSR or PSI)" which negatively impacts his "custody classification, redesignation (sic) programming, job placement, determination of his duration in prison ... [and that these] uncorrected errors ... may be used against [him] to increase punishment for crimes committed while incarcerated under a recidivist statute, and although not applicable to [him] presently, any future parole determinations could be impacted by these errrors (sic) in his PSR." (Doc. 1 at ECF p. 1 and p. 14.)*fn3 As relief, he seeks this Court to correct his PSR and direct the BOP to use the corrected PSR in making any future decisions. (Id. at ECF p. 15.) For the reasons that follow, the Petition will be denied.

II. Background

A. Procedural History

On November 27, 2001, Mr. Marmolejos pled not guilty in the United States District Court for the Southern District of New York to the following eight counts: (1) conspiracy to commit robbery and extortion, see 18 U.S.C. § 1951; (2) conspiracy to commit murder-for-hire, see 18 U.S.C. § 1958; (3) substantive murder-for-hire, see 18 U.S.C. § 1958; (4) conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, see 21 U.S.C. § 846; (5) murder while engaged in a major drug conspiracy, see 21 U.S.C. § 848(e)(1)(A); (6) using and carrying firearms in relation to crimes of violence, see 18 U.S.C. § 924(c); (7) murder in the course of a § 924(c) violation, see 18 U.S.C. § 924(j); and (8) possession of a firearm with an obliterated serial number, see 18 U.S.C. §922(k). Marmolejas v. U.S., No. 05CV10693, 2010 WL 3452386, at *2 (S.D. N.Y. Sept. 2, 2010).*fn4 The trial against Mr. Marmolejos and his co-defendant (Mr. Gomez) commenced on January 14, 2002. On February 1, 2002, the jury found Mr. Marmolejos guilty of all eight counts. (Id.) However, on July 25, 2002, the trial judge vacated the jury's guilty verdict as to Count Five, murder while engaged in a major drug conspiracy. The trial court held that the jury's verdict as to Count 5 was inconsistent with its finding as to Count Four, i.e., that the Government failed to prove Marmolejas knew the conspiracy involved a kilogram or more of heroin. Consequently, Mr. Marmolejos was acquitted of Count Five. United States. V. Gomez, 210 F. Supp.2d 465, 479 (S.D. N.Y. 2002). "On September 19, 2002, Marmolejas was sentenced on Counts One, Two, Three, Four, Six, Seven and Eight to life imprisonment, followed by a consecutive ten-year term and three years' supervised release, and $700 in special assessments." Marmolejas, supra, 2010 WL 3452386, at *2.

On September 25, 2002, Mr. Marmolejos filed a direct appeal. The United States Court of Appeals for the Second Circuit denied relief on all grounds and affirmed his conviction and sentence on October 27, 2004. See U.S. v. Marmolejas, 112 Fed. Appx. 779 (2d Cir. 2004). On October 3, 2005, the United States Supreme Court denied certiorari. See Gomez v. U.S., 546 U.S. 868, 126 S.Ct. 156, 163 L.Ed.2d 156 (2005).

On December 12, 2005, Mr. Marmolejos sought to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, citing three grounds of ineffective assistance of counsel under the Sixth Amendment of the United States Constitution. See Marmolejas v. U.S., Nos. 05 Civ. 10693(DC), 99 Cr. 1048(DC), 2006 WL 2642130 (S.D.N.Y. Sept. 15, 2006). After a merits review, the motion was denied on September 15, 2006. See Marmolejas, supra, 2006 WL 2642130. On May 16, 2007, the Second Circuit Court of Appeals denied Mr. Marmolejos' application for a certificate of appealability. Marmolejas, supra, 2010 WL 3452386, at *3. The Supreme Court denied Mr. Marmolejos' petition for writ of certiorari on October 9, 2007. See Marmolejas v. U.S., 552 U.S. 960, 128 S.Ct. 399, 169 L.Ed.2d 281 (2007).

Mr. Marmolejos then filed a motion to set aside a void judgment pursuant to Fed. R. Civ. P. 60(b)(4). Marmolejas, supra, 2010 WL 3452386, at *3. The trial court denied the motion on November 13, 2006. (Id.) On June 23, 2008, the Second Circuit Court of Appeals denied Mr. Marmolejos a certificate of appealability. (Id.) The Supreme Court denied his Petition for Writ of Certiorari on December 15, 2008. See Marmolejos v. U.S., 555 U.S. 1089, 129 S.Ct. 774, 172 L.Ed.2d 762 (2008).

Mr. Marmolejos filed a petition for writ of habeas corpus with the Supreme Court on December 4, 2007. The Supreme Court denied the petition on January 14, 2008. See In re Mr. Marmolejos, 552 U.S. 1139, 128 S.Ct. 1109, 169 L.Ed.2d 840 (2008). The Supreme Court also denied Mr. Marmolejos' petition for rehearing on February 25, 2008. See In re Mr. Marmolejos, 552 U.S. 1240, 128 S.Ct. 1470, 170 L.Ed.2d 293 (2008).

On March 21, 2008, Mr. Marmolejos filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Kentucky challenging his conviction under the Fifth Amendment.*fn5

Marmolejos v. Mukasey, Civ. Action No. 7:08-CV-59-KKC, 2008 WL 1776593 (E.D. KY 2008.) The district court denied his petition as lacking in merit and redundant to a claim raised in, and rejected by, the trial court. (Id. at *4.)

On May 26, 2009, Mr. Marmolejos filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 with this Court, alleging he was actually innocent of the murder-for-hire charge and that there was insufficient evidence to convict him of murder-for-hire. We denied the petition noting that Mr. Marmolejos could not advance his claims in a § 2241 petition as it fell within the purview of § 2255. We advised Mr. Marmolejos' only potential avenue for relief was to file a motion in the United States Court of Appeals for the Second Circuit seeking an order authorizing the sentencing court to consider a second of successive motion under 28 U.S.C. § 2255. Marmolejos v. Holder, No. 09-CV-0988 (M.D. Pa. Jul. 29, 2009). On December 23, 2009, the Third Circuit Court of Appeals denied Marmolejos' appeal. Marmolejos v. Holder, 358 F. App'x 289 (3d Cir. 2009).

Not to be deterred, on May 24, 2010, Mr. Marmolejos filed a motion for relief from final judgment or order pursuant to Fed. R. Civ. P. 60(b)(4), 60(d)(1), and 60(d)(3) on the grounds that the 2006 denial of his ยง 2255 filed in 2005 was defective. Marmolejas v. U.S., No. 05CV10693, 2010 WL 3452386, at *2 (S.D. N.Y. ...


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