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UNITED STATES OF AMERICA, Plaintiff, v. BENJAMIN LOPERA-OCHOA, Defendant.

ORDER

MAURICE PAUL, Senior District Judge

This matter is before the Court on Motion to Vacate Judgment Pursuant to Rule 36, in Pari Materia to Rule 60(b) Fed.R.Civ.Proc. By Benjamin Lopera-Ochoa, Doc. 93. Mr. Lopera-Ochoa's petition for a writ of habeas corpus was dismissed with prejudice ten years ago, Doc. 89. Next, Mr. Lopera-Ochoa petitioned for a writ of error audita querela, which has been abolished, Doc. 91; see Fed.R.Civ.P. 60(e).

Now comes Mr. Lopera-Ochoa to ask that the Court adapt Federal Rule of Civil Procedure 60(b), allowing relief from civil judgment, to grant him relief from this criminal judgment. The accompanying memorandum of law discussed the writ of error audita querela, arguing that the Court should reverse its earlier denial of relief, and re-sentence Mr. Lopera-Ochoa according to the non-retroactive current Sentencing Guidelines. The Court may not do so.

Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, the writ of habeas corpus is the avenue for criminal defendants to challenge convictions that have been made final at the completion of their direct appeals. Here, Mr. Lopera-Ochoa has pursued that avenue, and has not succeeded in getting relief. These subsequent successive efforts to attack collaterally the validity of his conviction are ineffective and disallowed. Accordingly, the Motion to Vacate Judgment, Doc. 93, is DENIED.

DONE AND ORDERED.

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U.S. v. LOPERA-OCHOA
(Jun 2, 2010)