UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA 

v. CAUSE NO.: 1:12-CR-88-TLS 

PEDRO GARZA 

OPINION AND ORDER 

This matter is before the Court on the Defendant’s Motion to Amend Judgment (Fed. R. 

Civ. P. 59(e)) [ECF No. 183], Motion to Appoint Counsel [ECF No. 184], and Motion for 

Vacatur of a Final Judgment Under Fed. R. Civ. P. 60(b) [ECF No. 185]. 

The Defendant’s Motion to Amend Judgment (Fed. R. Civ. P. 59(e)) [ECF No. 183] is 

largely identical to his withdrawn filing under 28 U.S.C. § 2255 at docket entry 165. The only 

difference is the handwritten request that the Court “amend the judgment entered in this case on 

4-9-15 and to impose a revised sentence that is ‘sufficient, but not greater than necessary’ to 

achieve the sentencing purposes of § 3553(a).” See Def.’s Mot. 1, ECF No. 183. Thus, the 

Motion is properly considered a successive filing under § 2255. As the Court indicated in a 

previous order [ECF No. 180], the Defendant may not file a second or successive habeas 

petitions unless he first obtains certification to do so from the court of appeals. See 28 U.S.C. 

§ 2255(h) (providing that a “second or successive motion must be certified as provided in section 

2244 by a panel of the appropriate court of appeals”); Holt v. United States, 843 F.3d 720, 723 

(7th Cir. 2016) (stating that “Section 2255(h) permits a court of appeals to authorize a successive 

collateral attack” (emphasis added)); see also Vitrano v. United States, 643 F.3d 229, 233 (7th 

Cir. 2011) (“A § 2255 motion need not be adjudicated on the merits to ‘count’ as a prisoner’s 

first motion for AEDPA purposes.” (citing Felder v. McVicar, 113 F.3d 696, 697 (7th Cir. 

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1997))). Here, it does not appear that the Defendant has obtained permission from the Court of 

Appeals to file this successive petition. Thus, this Court cannot review the merits of the 

Defendant’s arguments and will dismiss this Motion for lack of jurisdiction. 

 The Defendant also filed a Motion for Vacatur of a Final Judgment Under Fed. R. Civ. P. 

60(b) [ECF No. 185]. This Motion asks the Court to overturn its Order at docket entry 173, 

which granted the Defendant’s Motion to Withdraw Motion to Correct Sentence Under 28 

U.S.C. § 2255 at docket entry 165. As the Court explained in its Opinion and Order withholding 

ruling on the Motion to Withdraw, allowing withdrawal did not alter the Motion’s status as the 

Defendant’s one opportunity to pursue collateral review. See Op. & Order 2, Apr. 17, 2017, ECF 

No. 172. The Defendant explains in his Motion that he did not want to withdraw his Motion to 

Correct Sentence Under 28 U.S.C. § 2255; that he never received a copy of the Court’s April 

2017 Order; and he now asks for relief pursuant to Federal Rule of Civil Procedure 60(b)(1) from 

the Order granting the withdrawal of the Motion so that he can amend his Motion to Correct 

Sentence under 28 U.S.C. § 2255. See Def.’s Mot. for Vacatur ¶¶ 2–9, ECF No. 185. However, a 

motion under Rule 60(b) must be made “within a reasonable time,” and with respect to 60(b)(1), 

no more than a year after the entry of the order. See Fed. R. Civ. P. 60(c). The Defendant’s 

Motion was filed nearly four years after the Order from which he is seeking relief, and is thus 

untimely. Therefore, the Court will deny this motion without prejudice. 

 Finally, in the Defendant’s Motion to Appoint Counsel [ECF No. 184], the Defendant 

represents that, as he has submitted a 59(e) Motion and the facility where he is located is on 

lockdown/modified operations because of Covid-19, counsel should be appointed. The Court 

recognizes that “prisoners are entitled to access a prison law library or other legal materials only 

to the extent necessary to ensure that the prisoner’s access to the courts, and his ability to litigate 

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any potentially meritorious challenge to his conviction, sentence, or conditions of confinement, 

is not prejudiced by lack of access to such materials.” United States v. Beach, No. 2:11-CR-47, 

2020 WL 3991174, at *4 (N.D. Ind. July 15, 2020). The Defendant’s motion contains no facts or 

details related to how the modified lockdown has impacted his ability to access the law library or 

legal materials. Without additional information, the Court cannot conclude that the Defendant 

does not have sufficient access to a law library and/or legal materials and cannot grant the 

Defendant’s Motion. Additionally, the Court is denying the Defendant’s Rule 59(e) Motion as a 

successive petition under § 2255. Therefore, the Court denies the Defendant’s request to appoint 

counsel. 

NO CERTIFICATE OF APPEALABILITY 

 The Court must “issue or deny a certificate of appealability when it enters a final order 

adverse to the applicant.” Rule 11 of the Rules Governing Section 2255 Proceedings. A 

certificate of appealability may be issued “only if the applicant has made a substantial showing 

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Rule 11 of the Rules 

Governing Section 2255 Proceedings. The substantial showing standard is met when “reasonable 

jurists could debate whether (or, for that matter, agree that) the petition should have been 

resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Where, as here, “a plain procedural bar is 

present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 

could not conclude either that the district court erred in dismissing the petition or that the 

petitioner should be allowed to proceed further.” Id. Therefore, the Court will not issue the 

Defendant a certificate of appealability. 

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CONCLUSION 

Because the Defendant has not obtained permission from the Court of Appeals to file a 

second habeas motion, the Court DISMISSES FOR LACK OF JURISDICTION the Defendant’s 

Motion to Amend Judgment (Fed. R. Civ. P. 59(e)) [ECF No. 183]. The Defendant’s Motion for 

Vacatur of a Final Judgment Under Fed. R. Civ. P. 60(b) [ECF No. 185] is DENIED as untimely 

filed. Finally, the Defendant’s Motion to Appoint Counsel [ECF No. 184] is DENIED 

WITHOUT PREJUDICE. 

SO ORDERED on April 28, 2021. 

 s/ Theresa L. Springmann 

JUDGE THERESA L. SPRINGMANN 

UNITED STATES DISTRICT COURT 

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