                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
CARLOS J. HINOJOSA,                 )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 10-2279 (ESH)
                                    )
U.S. ATTORNEY GENERAL, et al.,      )
                                    )
                  Defendants.       )
____________________________________)


                                  MEMORANDUM OPINION

       Plaintiff Carlos J. Hinojosa, a prisoner at the Federal Correctional Institution in Bastrop,

Texas, has filed a complaint against the United States Attorney General, the United States

Attorney’s Office for the Southern District of Texas, United States District Judge Hilda Tagle,

and the United States Attorney for the District of Columbia. (Compl. at 1.) Plaintiff’s complaint

seeks to “vacate VOID JUDGMENT Due to Lack of Subject Matter Jurisdiction Pursuant to

Federal Rules of Civil Procedures, Under Rule 60(b)(4).” (Id. at 2.) The judgment at issue is the

“Judgment in a Criminal Case” entered against him by Judge Tagle in the Southern District of

Texas. See United States v. Hinojosa, Criminal No. 03-1010-01 (S.D. Tex. Feb. 3, 2006)

(hereinafter “Criminal Judgment”)1; (Compl. at 2.)

       “Federal courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be

presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the


       1
        Pursuant to that judgment, defendant was convicted of promoting and aiding and
abetting money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(I) and 18 U.S.C. § 2.
(Criminal Judgment at 1.)
contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994) (internal citations omitted). In addition,“‘[i]t is axiomatic that subject

matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.’”

NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008) (quoting Athens Cmty. Hosp., Inc.

v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982)). Indeed, a federal court must raise the issue

because it is “forbidden - as a court of limited jurisdiction - from acting beyond [its] authority,

and ‘no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Id.

(quoting Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003)). A district court

may dismiss a complaint sua sponte prior to service on the defendants, pursuant to Federal Rule

of Civil Procedure 12(h)(3), when it is evident that the court lacks subject-matter jurisdiction.

See Evans v. Suter, No. 09-5242, 2010 WL 1632902 (D.C. Cir. Apr. 2, 2010) (citing Hurt v. U.S.

Court of Appeals for the D.C. Cir., No. 07-5019, 2008 WL 441786 (D.C. Cir. Jan. 24, 2008);

Scholastic Entertainment, Inc. v. Fox Entertainment Group, Inc., 326 F.3d 982, 985 (9th Cir.

2003); Zernial v. United States, 714 F.2d 431, 433-34 (5th Cir. 1983)).

       Such is the case here. Plaintiff relies on Federal Rule of Civil Procedure 60(b)(4) as

giving the Court jurisdiction to declare his criminal conviction void. (Compl. at 3-6.) Rule

60(b)(4) permits a party in a civil case to file a “motion” seeking relief from a final judgment on

the ground that the judgment is “void.” Fed. R. Civ. P. 60(b)(4). But it is not a jurisdictional

statute, and there is simply no support for plaintiff’s assertion that Rule 60(b)(4) permits a

criminal defendant to file an “independent” civil action in a different jurisdiction collaterally

attacking a criminal judgment. To the contrary, it is well-established that judicial review of a

federal conviction and sentence is available only via a motion filed in the sentencing court

pursuant to 28 U.S.C. § 2255 or a petition for a writ of habeas corpus against the warden in the


                                                  2
jurisdiction where the defendant is being held if the remedy under § 2255 is inadequate or

ineffective to test the legality of a person’s detention. See, e.g., Romero v. United States

Attorney General, 2008 WL 723335 (D.D.C. Mar. 18, 2008). Indeed, an earlier and virtually

identical case filed by plaintiff was dismissed on the ground that Rule 60(b)(4) “cannot be used

in criminal cases.” Hinojosa v. Gonzales, et al., Civil No. 08-0096 (S.D. Tex. July 28, 2008).2

Although mindful that complaints filed by pro se litigants are held to less stringent standards

than those applied to formal pleadings drafted by lawyers, see Haines v. Kerner, 404 U.S. 519

(1972), Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008), it is clear that the

Court lacks subject matter jurisdiction over plaintiff’s claims.

       Accordingly, the Court will dismiss this case sua sponte pursuant to Rule 12(h)(3) of the

Federal Rules of Civil Procedure for lack of subject matter jurisdiction. An Order consistent

with this Memorandum Opinion will be issued separately.



                                                            /s/
                                               ELLEN SEGAL HUVELLE
                                               United States District Judge
DATE: January 4, 2011




       2
          As in the present case, plaintiff filed his complaint in the District Court for the District
of Columbia, but it was transferred to the Southern District of Texas on the ground that it should
be construed as a motion for post-conviction relief under 28 U.S.C. § 2255. Order, Hinojosa v.
Gonzales, Civil No. 07-00860 (D.D.C. filed Oct. 12, 2007). After the case was transferred, the
district court in Texas did not construe it as a motion for relief under § 2255, but dismissed on
the ground that Rule 60(b)(4) had no application in a criminal case and, in the alternative, that
none of plaintiff’s claims had any merit. See Hinojosa v. Gonzales, et al., Civil No. 08-0096
(S.D. Tex. July 28, 2008). Plaintiff filed a virtually identical complaint the following year,
which was again transferred to the Southern District of Texas. Order, Hinojosa v. Makuski, Civil
No. 08-1072 (D.D.C. filed Oct. 24, 2008). Plaintiff withdrew that complaint. Motion to
Withdraw, Hinojosa v. Makuski, Civil No. 08-00328 (S.D. Tex. filed Apr. 27, 2009).

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