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United States v. Soto-Herrera

United States District Court, S.D. Alabama, Southern Division

March 22, 2018

UNITED STATES OF AMERICA,
v.
MANUEL SOTO-HERRERA, Defendant.

          ORDER

          KRISTI K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE

         Before 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 be dismissed.

         I. BACKGROUND

         Soto-Herrera 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. 288).

         Soto-Herrera 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).

         In April 2015, the Court reduced Soto-Herrera's sentence to 360 months pursuant to 18 U.S.C. § 3582(c)(2). (Doc. 409).

         II. DISCUSSION

         a. Soto-Herrera's Argument

         Soto-Herrera 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).

         Soto-Herrera's 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).

         He 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).

         b. Discussion of Law

         Soto-Herrera 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 ...

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