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United States of America v. Alfredo Nuno

October 25, 2012



Petitioner Alfredo Nuno ("Petitioner") is a federal prisoner who proceeded pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Court denied that motion on August 9, 2012. See Court's Docket, Doc. No. 152. Currently pending before the Court are Petitioner's motions to vacate judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and for a certificate of appealability. See id., Doc. Nos. 157, 159.


On November 1, 2010, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate the sentence of 262 months imprisonment that was imposed following Petitioner's plea of guilty to one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The 28 U.S.C. § 2255 petition was based on Petitioner's allegations that the sentence violated his Fifth and Sixth Amendment rights, that 21 U.S.C. § 841 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that the United States Sentencing Guidelines were applied unreasonably, and that Petitioner's sentence violated the Eighth Amendment prohibition on grossly disproportionate punishment. The Court denied Petitioner's 28 U.S.C. § 2255 petition on the basis that Petitioner failed to allege that his plea agreement waiving his right to appeal was not knowingly or voluntarily made. Following the Court's denial of that motion, Petitioner filed a notice of appeal in the Ninth Circuit Court of Appeals on September 20, 2012. See Court's Docket, Doc. No. 156. Petitioner also filed the instant motion for a certificate of appealability. Id. at Doc. No. 157. On October 2, 2012, Petitioner filed the instant motion to vacate judgment. Id. at Doc. No. 159. On October 10, 2012, the Ninth Circuit issued a letter to Petitioner informing him that a briefing schedule on his notice of appeal will not be set until this Court and, if necessary, the Ninth Circuit determine whether a certificate of appealability should issue. For the reasons set forth herein, the Court declines to issue a certificate of appealability and denies Petitioner's motion to vacate judgment.


A. Federal Rule of Civil Procedure 60(b)

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. This rule permits a district court to relieve a party from a final order or judgment on various grounds, including 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud or misconduct by an opposing party; 4) a void judgment; 5) a satisfied judgment; or 6) any other reason that justifies relief from the judgment. See Fed. R. Civ. P. 60(b). Motions to reconsider are committed to the discretion of the trial court. Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015, 108 S. Ct. 1752, 100 L.Ed.2d 214 (1988).

Further, when filing a motion for reconsideration, Local Rule 230(j) requires a party to show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," as well as "why the facts or circumstances were not shown at the time of the prior motion." See L.R. 230(j). A district court may properly deny a motion for reconsideration that simply reiterates an argument already presented by the petitioner. Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995).

B. Certificate of Appealability

The controlling statute provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.

(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of ...

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