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Dorado v. Pacheco

United States District Court, D. Maryland

April 2, 2018

RAMON JESUS DORADO, Petitioner,
v.
WARDEN MICHELLE PACHECO and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          DATE PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         On December 18, 2017, Ramon Jesus Dorado filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. S 2254. The Petition challenges Doradoss 1984 conviction for two counts of murder pursuant to a guilty plea he entered in the Circuit Court for Montgomery County, and for which he is serving a life sentence. Pet. 1, ECF No.1; see also State Ct. Docket 31640C, Entry No. 246.[1] Respondents filed an Answer, seeking dismissal of the Petition under 28 U.S.C. S 2244(b)(3)(A) as unauthorized and successive. Resp't's Answer, ECF N0.4. Dorado has filed a Reply. Pet's Reply, ECF N0.6.

         An evidentiary hearing is unnecessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Loc. R. 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (holding that Petitioner was not entitled to hearing under 28 U.S.C. S 2254(e)(2)). For reasons that follow, the petition for writ of habeas corpus IS DENIED AND DISMISSED.

         BACKGROUND

         Dorado previously sought federal habeas relief premised on the same state conviction. See Dorado v. Galley, No. HAR-92-3569 (D. Md. 1993). In his earlier petition, Dorado claimed that: 1) he was "denied due process of law for the reason that he was denied the genuine and effective assistance of trial counsel"; 2) his "guilty plea was not knowingly, voluntarily, or intelligently made based on a clear lack of understanding;; 3) his "guilty plea and sentencing were invalid due the guilty plea hearing judges actions"; 4) he "was denied his constitutional and statutory right to effective assistance of counsel for post conviction proceedings"; and 5) "there was insufficient evidence to sustain a conviction of attempt to perpetrate a robbery." Respt's 1992 Answer, ECF No.4-1, at 8-9[2]; see also Pet. 3, ECF No. 1. Respondents filed an Answer seeking denial of the Petition on its merits. Id., ECF No. 4-1, at 4-18. On April 1, 1993, the Honorable John H. Hargrove dismissed the Petition "[f]or the reasons set forth in the Respondent's Answer . . . ." Order, ECF No. 4-1, at 3.

         Dorado appealed the district court's Order dismissing the Petition. The United States Court of Appeals for the Fourth Circuit affirmed the dismissal for the reasons provided by the district court. Dorado v. Galley, et al., CA4 93-6566 (December 2, 1993) (per curiam); ECF No. 4-1, at 2.

         DISCUSSION

         Dorado summarily asserts his current petition is not successive. Pet.'s Reply 3, ECF No. 6. He alleges the district court Order that dismissed his S 2254 Petition was issued two days after Respondents filed their answer, and he was not given a chance to reply. Id. ¶¶ 3-4. Dorado observes that a memorandum opinion did not accompany the Order that dismissed his Petition, and appears to believe that the district court's dismissal was without reason. Id. Further, he questions the appellate court's ruling that based on the district court's reasoning, his appeal was without merit. Id. Dorado requests permission to proceed with his current Petition "due to procedural default and or any other reasons the Court deems acceptable" since he "did not have a fair and full review under the law in 1993." Id. ¶ 5.

         Fed R. Civ. P. 60(b)

         To the extent Dorado, a pro se petitioner, is asserting his 1992 federal habeas corpus process was deficient, his allegation raises as a threshold question whether his current Petition is successive or more appropriately treated as a Motion for Relief from a judgment under Fed.R.Civ.P. 60(b). Generally, "a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider." United States v. Winestock, 340 F.3d 200, 207 (4th. Cir. 2003); see also Gonzalez v. Crosby, 545 U.S. 524, 511-33 (2005) (concluding that a Rule 60(b) motion for relief from judgment that directly challenges the underlying conviction constitutes a successive S 2254 petition).

         Rule 60(b) is an "extraordinary remedy" used only upon a "showing of exceptional circumstances." Compton v. Alton Steamship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979) (citation and internal quotation marks omitted). A movant must first show that he has moved in a timely fashion, that he has a meritorious defense to the judgment, that the opposing party would not be unfairly prejudiced by having the judgment set aside, and that exceptional circumstances exist. See Athens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011); Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (citing Compton, 608 F.2d at 102). "Once the movant has made such a showing, he must proceed to satisfy one or more of [Rule 60(b)'s] six grounds for relief from judgment.)[3] Werner, 731 F.2d at 207. The party moving for relief from judgment under Rule 60(b) "bears the burden of showing timeliness." Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 300 (4th Cir. 2017).

         After Dorado's federal habeas petition was denied, he waited twenty-four years to file the present S 2254 petition. Dorado asserts that he has limited understanding of the law and has been requesting legal assistance since his first state post-conviction petition was filed and denied in 1989. Pet. 3, 5; Pet.'s Reply 2. Doradoss numerous motions and correspondence filed in state court since 1992 vitiate this assertion. His state filings since 1992 include a motion for appropriate relief, a motion to amend, notices of appeal, a motion to appoint counsel, a petition for coram nobis, a petition for post-conviction relief, a motion for a panel attorney and request for a hearing, a motion for medication of sentence, motions to waive filing fees, and a 2016 petition for writ of certiorari. See, e.g., State Ct. Docket Nos. 313, 355, 316, 326, 329, 35;, 375; see also Pet. 2 (noting the 2017 denial of certiorari review). Thus, Dorado fails to show his claim was filed in a timely fashion. See Fed. R. Civ. P. 60(c); Wells Fargo Bank, N.A., 859 F.3d at 300.

         Further, Dorado claims the indictment did not charge him with a crime under Maryland Law. Pet. 3. Dorado does not claim, nor does the record show, that he raised this claim in state court.[4] "Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents [the habeas statute's] requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts." Gonzalez, 545 U.S. at 531 (2005) (citing 28 U.S.C. 9 2244(b)(2)). Otherwise, Rule 60(b) could be used to "impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals." Id.

         Dorado fails to satisfy the requirement that his motion be timely, and the record does not suggest exceptional circumstances to warrant the extraordinary relief provided under Rule 60(b). Thus, there are no ...


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