United States District Court, S.D. Alabama, Southern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE
the Court is Manuel Soto-Herrera's Motion for Relief
Pursuant to Fed.R.Civ.P. 60(b) and Fed.R.Civ.P. 60(d) and All
Applicable Subparts. (Doc. 413). For the reasons explained
below, the Court lacks jurisdiction, and the motion is due to
was convicted of 1) conspiracy to import more than 100
kilograms of cocaine and 2) possession with intent to
distribute more than 100 kilograms of cocaine. On November
21, 1995, he was sentenced to concurrent life sentences on
each count (Doc. 165). Soto-Herrera appealed (Doc. 169) and
on October 9, 1997, the Eleventh Circuit affirmed. (Doc.
filed his first habeas petition on January 6, 1999 (Docs.
316-318), which the Court denied on January 3, 2000 (Doc.
368). Soto-Herrera appealed the denial (Doc. 371) and filed a
motion for a Certificate of Appealability (Doc. 372), which
the Court denied on February 14, 2000 (Doc. 373). On June 27,
2000, the Eleventh Circuit denied Soto-Herrera a Certificate
of Appealability because he had “failed to make a
substantial showing of the denial of a constitutional
right” under Section 2253(c)(2). (Docs. 382, 384).
Following the denial, the Eleventh Circuit denied
Soto-Herrera's application for leave to file a second or
successive § 2255 petition (Doc. 385).
April 2015, the Court reduced Soto-Herrera's sentence to
360 months pursuant to 18 U.S.C. § 3582(c)(2). (Doc.
moves to the Court to (i) vacate his sentence, judgment and
conviction; (ii) release him from custody; (iii) deem the
investigation, information, discovery, and all evidence
against him tainted; (iv) dismiss this matter with prejudice;
and (v) provide all other relief the Court deems just. (Doc.
413 at 25-26).
argument concerns the validity, legality, and propriety of
his indictment, conviction, and judgment. He states that two
Assistant United States Attorneys, “C. Kandt and J. Don
Foster” (Doc. 413 at 4) did not file their Oath of
Office and Appointment Affidavits with the Executive Office
for United States Attorneys. (Doc. 413 at 4). This failure,
Soto-Herrera argues, renders their appointment as Assistant
United States Attorneys “invalid and
unauthorized.” (Doc. 413 at 4). As evidence of their
alleged failure to file affidavits, he attached as exhibits
to his motion two Freedom of Information Act and/or Privacy
Act request responses from the United States Department of
Justice Executive Office for United States Attorneys. While
inconclusive (because his request was not included) the
response from the Freedom of Information and Privacy Staff
indicated a search in Executive Office of the United States
Attorneys-Personnel did not reveal a responsive record for
both C. Kandt and J. Don Foster. (See Doc. 413 at 28-31).
Relying on these FOIA responses, he claims the Affidavits
“do not exist with . . . the Department of Justice . .
. nor the Executive Office of the United States
Attorneys.” (Doc. 413 at 3).
states that the AUSAs probably executed the Appointment
Affidavit but neglected to mail it to the Department of
Justice. Soto-Herrera proceeds to argue that for an
appointment to be effective, an AUSA must both execute an
Appointment Affidavit and return it to the Department of
Justice. (Doc. 413 at 5). He argues that failure to return
them renders the Appointment Affidavits invalid and
unauthorized. Due to this lack of authorization, Soto-Herrera
asserts the actions by those who failed to comply with the
second requirement “bring into question the entire
validity of the criminal proceedings against [Soto-Herrera] .
. . and renders all proceedings null and void from inception.
(Doc. 413 at 8).
Discussion of Law
moves pursuant to Fed.R.Civ.P. 60(b)(3)(4)&(6) and
60(d)(1)&(3). Fed.R.Civ.P. 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the court
may relieve a party or its legal representative from a final
judgment, order, or ...