2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-2012

Rivera v. Scism

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4592

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1

ALD-138 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4592

___________

JAIME RIVERA, Appellant

v.

WILLIAM A. SCISM

 

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 1-10-cv-01773)

District Judge: Honorable William W. Caldwell

____________________________________

Submitted on Appellant’s Application to Proceed 

In Forma Pauperis

Third Circuit LAR 27.4 and I.O.P. 10.6

and for Possible Summary Action Pursuant to 

March 22, 2012

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: March 30, 2012)

_________

OPINION

_________

PER CURIAM.

Jaime Rivera, a federal prisoner proceeding pro se, appeals from the District 

Court’s order denying his motion pursuant to Rule 60(b) of the Federal Rules of Civil 
2

Procedure. For the reasons that follow, we will affirm.

In 1992, Rivera was convicted in the United States District Court for the Eastern 

District of Pennsylvania of various drug charges, including distribution of cocaine, in 

violation of 21 U.S.C. § 841(a)(1), and distribution of cocaine within 1000 feet of a 

school, in violation of 21 U.S.C. § 860. He received a sentence of 292 months in prison. 

Rivera filed a direct appeal, which was dismissed pursuant to Federal Rule of Appellate 

Procedure 42(b). 

In May 1993, Rivera filed a motion to vacate his sentence pursuant to 28 U.S.C. § 

2255. The District Court denied relief on the merits and we affirmed. Rivera has since 

brought many challenges to his conviction and sentence, including motions pursuant to 

18 U.S.C. § 3582, habeas petitions pursuant to 28 U.S.C. § 2241, and a motion pursuant 

to 28 U.S.C. § 2244 for leave to file a second or successive § 2255 motion, all of which 

have been unsuccessful.

In 2010, Rivera filed a habeas petition in the District Court pursuant to 

§ 2241 in which he argued, inter alia, that he was entitled to relief under this Court’s 

decision in United States v. Jackson, 443 F.3d 293 (3d Cir. 2006). In Jackson, we held 

that because § 841(a)(1) (distribution of cocaine) is a lesser-included offense of § 860 

(distribution of cocaine within 1000 feet of a school), conviction of both crimes based on 

the same set of facts violates the Double Jeopardy Clause of the Fifth Amendment. Id. at 

301. The District Court dismissed the petition for lack of jurisdiction, explaining that 

Rivera was required to present this claim in a petition pursuant to § 2255, not § 2241. 
3

The District Court denied Rivera’s subsequent motion for reconsideration, and we 

affirmed. Rivera v. Scism

Rivera then returned to the District Court and filed a motion pursuant to Rule 

60(b)(6) in which he again argued that he was entitled to relief under this Court’s 

decision in 

, 438 F. App’x 154 (3d Cir. 2011). 

Jackson. The District Court denied relief, explaining that Rivera had merely 

reiterated the Jackson argument that it had already rejected. Rivera now appeals from the 

District Court’s order.1

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District 

Court’s order for abuse of discretion. 

 

See Budget Blinds, Inc. v. White, 536 F.3d 244, 

251 (3d Cir. 2008). Relief under Rule 60(b)(6) “is available only in cases evidencing 

extraordinary circumstances.” Martinez-McBean v. Gov’t of V.I.

We will affirm the District Court’s order. As the District Court explained,

Rivera’s Rule 60(b)(6) motion merely reiterated the 

, 562 F.2d 908, 911 (3d 

Cir. 1977) (internal quotation marks and citation omitted). 

Jackson argument that he presented 

in support of his § 2241 petition, which both the District Court and this Court held could 

not be raised by way of § 2241.2

 It is well established that a Rule 60(b) motion may not 

be used as a substitute for an appeal, see Smith v. Evans

 1 We grant Rivera’s motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 

1915. 

, 853 F.2d 155, 158 (3d Cir. 

2 Rivera also raised this claim in a motion for leave to file a second or successive 

§ 2255 motion, which this Court denied. (C.A. No. 09-2000, May 19, 2009.)
4

1988), or as a means of seeking review of this Court’s previous opinion in this case, see

Reform Party v. Allegheny Cnty. Dep’t of Elections

Accordingly, because this appeal does not present a substantial question, we will 

summarily affirm the District Court’s order. 

, 174 F.3d 305, 312 (3d Cir. 1999). 

Rivera has inappropriately resorted to Rule 60(b)(6) to re-litigate his purported § 2241 

petition. Therefore, the District Court did not abuse its discretion in concluding that 

Rivera was not entitled to relief under Rule 60(b)(6). 

See Third Cir. L.A.R. 27.4 and I.O.P. 10.6.