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United States v. Pomales

United States District Court, N.D. Ohio

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN POMALES, Defendant.

          OPINION & ORDER [RESOLVING DOCS. 485, 487, 488, 489, 490]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE

         Defendant Norman Pomales seeks relief from final judgment under Federal Rule of Civil Procedure 60(b) and Federal Rule of Civil Procedure 60(d). In his Rule 60(b) motion, Pomales says he received ineffective assistance from his trial counsel.[1] In his Rule 60(d) motion, Pomales claims that the Court committed a fraud on him by denying discovery regarding his 28 U.S.C. § 2255 habeas petition.[2]

         The Court finds that Pomales's Rule 60(b) petition is a successive petition because it contains claims that could have been brought as part of Pomales's original § 2255 habeas petition. The Court, therefore, TRANSFERS Pomales's motion to the Sixth Circuit Court of Appeals.

         The Court also finds that Pomales's Rule 60(d) motion fails to allege a fraud committed on the Court. The Court, therefore, DENIES Pomales's 60(d) motion.

         I. BACKGROUND

         On February 27, 2004 a jury found Pomales guilty on two counts: (1) conspiracy to possess with the intent to distribute more than 50 grams of cocaine base (“crack”) and/or more than 5 kilograms of cocaine powder, a violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846; and (2) using a telephone to facilitate a drug trafficking offense, a violation of 21 U.S.C. § 843(b).[3]

         On appeal, the Sixth Circuit affirmed Pomales's conviction, but vacated his sentence and remanded for resentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005).[4] This Court amended Pomales's sentence accordingly, and the Sixth Circuit affirmed this Court's sentence.[5]

         Pomales then brought a habeas corpus motion under 28 U.S.C. § 2255 alleging that he had been unconstitutionally denied the effective assistance of counsel, and, in a separate motion, petitioned this Court for additional discovery to support that claim.[6] This Court denied both motions, [7] and the Sixth Circuit affirmed the denial of Pomales § 2255 motion.[8]

         Since then, Pomales has filed three Rule 60(b) motions.[9] The Court transferred all three Rule 60(b) motions to the Sixth Circuit as second or successive § 2255 petitions.[10]

         Pomales now brings his fourth 60(b) motion and a Rule 60(d) motion.

         II. DISCUSSION

         A. Rule 60(b) Motion

         Pomales's Rule 60(b) motion seems to contain the same arguments from his third Rule 60(b) motion.[11] The Court transferred his third Rule 60(b) motion to the Sixth Circuit as a successive § 2255 petition because it contained new arguments that Pomales never raised in his original § 2255 petition.[12] Thus, Pomales's Rule 60(b) motion also raises new claims.

         “When a petitioner raises new claims in a Rule 60(b) motion challenging the denial of a § 2255 motion, the Rule 60(b) motion must be construed as an attempt by the petitioner to file a second motion to vacate.”[13] “A federal prisoner may not file a second or successive motion to vacate his sentence, however, until the court of appeals issues an order that authorizes the district court to consider the ...


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