                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

USA v. Martinez-Tull
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4547




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"USA v. Martinez-Tull" (2007). 2007 Decisions. Paper 1270.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1270


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BLD-157                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-4547
                                  ________________

                          UNITED STATES OF AMERICA

                                          vs.

                          EDUARDO MARTINEZ-TULL,
                                       Appellant
                     ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                             (D.C. Crim. No. 01-cr-00235)
                      District Judge: Honorable Berle M. Schiller
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 22, 2007
            Before: MCKEE, FUENTES and WEIS, CIRCUIT JUDGES

                               (Filed: April 17, 2007)

                                ___________________

                                     OPINION
                             _______________________

PER CURIAM.

             Eduardo Martinez-Tull appeals the District Court’s order denying his

“Motion Pursuant to Rule 60(b)(6).” In August 2001, Martinez-Tull pled guilty to

distributing cocaine base and was subsequently sentenced in February 2002 to 120

                                           1
months in prison. He did not appeal his conviction or sentence. On August 3, 2006,

Martinez-Tull filed a “Motion pursuant to Rule 60(b)(6).” He argued that he was denied

the right to a direct appeal and that there had been an intervening change in the law

concerning the sentencing guidelines. The District Court denied the motion. It stated that

there is no Rule 60(b) right to resentencing under the Federal Rules of Criminal

Procedure and the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738

(2005) is not retroactively applicable.

              The District Court did not err in denying Martinez-Tull’s Rule 60(b)

motion. It appears that Martinez-Tull intended to proceed under Rule 60(b) of the

Federal Rules of Civil Procedure; however, those rules apply to civil cases, not criminal

cases. A motion filed pursuant to 28 U.S.C. § 2255 is the appropriate vehicle for the

claims Martinez-Tull seeks to raise. We express no opinion over the merits of such a

motion.

              Summary action is appropriate if there is no substantial question presented

in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set

forth by the District Court, we will summarily affirm the District Court’s order. See

Third Circuit I.O.P. 10.6.




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