United States District Court, Southern District of New York
July 7, 2003
VIRGILIO HERRERA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: John Martin, United States District Judge
OPINION & ORDER
Virgilio Herrera, who was convicted on various charges relating to the distribution of heroin, has filed a motion under Rule 60(b) seeking to vacate his sentence. Since Herrera filed an earlier petition pursuant to 28 U.S.C. § 2255 seeking to set aside his conviction, the Government argues that the Court should give Herrera notice that it intends to transfer this matter to the Second Circuit pursuant to 28 U.S.C. § 2254. However, in light of the opinion of the Second Circuit in United States v. Gitten 311 F.3d 529 (2002), it seems more appropriate simply to deny the relief under Rule 60(b).
The only grounds for setting aside a judgment stated in Rule 60(b) that might apply here are either "(4) the judgment is void" or "(6) any other reason justifying relief from the operation of the judgment." However, neither of these grounds justify the granting of relief here. Clearly, the judgment was not void since the Court had jurisdiction over the offender and the offense. Although Herrera claims that, in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), there was insufficient evidence to sustain the charge that he used a fireman in connection with a narcotics offense, that claim has already been rejected by the Second Circuit which affirmed his conviction subsequent to Bailey stating:
Herrera argues that there was insufficient evidence
to support his conviction under 18 U.S.C. § 924(c).
Specifically, he contends that there was insufficient
evidence that Herrera used a gun, and that (assuming
he did use a gun) such use was in connection with a
narcotics trafficking offense. We disagree.
The government introduced two wiretap recordings of
conversations Herrera had with his wife on the day
following the March 25th shootout. In the first
conversation, Herrera told his wife that he and
several other identified members of the "48 Hours"
gang had gotten into a shootout at 13th Street. He
told her that "we were shooting like fifty times."
When she asked Herrera if he hit anyone, he replied:
"I was shoo — we don't know." Herrera also told his
wife that if Richie Rodriguez (the leader of the
organization) called, she should tell Rodriguez what
had happened. In the second conversation, Herrera
again told his wife of the shootout. When she asked
Herrera why he had the gun in the first place, he
began "we had just paid . . .", before moving on to
These admissions are enough for a reasonable jury to
conclude beyond a reasonable doubt that the shootout
occurred, and that Herrera fired a gun. Furthermore,
because the shootout took place at the 13th Street
spot and involved the members of the "48 Hours"
heroin distribution gang, and because Herrera told
his wife to pass the news to the drug gang's leader,
a jury could reasonably find that Herrera's use of
the gun was related to his narcotics trafficking
United States v. Acaide, 100 F.3d 944, Nos. 95-1488, 95-1489, 1996 WL 75757, *2 (2nd Cir. Feb. 20, 1996).
In light of these express findings by the Second Circuit, there is no basis to conclude either that Herrera's conviction is void or that there is any other reason justifying relief from the operation of the judgment. Therefore, the motion for relief pursuant to Rule 60(b) is denied.
In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
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