United States v. Gerardo Guizar

MEMORANDUM

Federal prisoner Gerardo Madrigal Gui-zar appeals pro se from the district court’s denial of his “Motion for Relief Pursuant to Fed.R.Civ.P. 60(b) and Fed.R. Crim.P. 52(b).” We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand.

Madrigal Guizar’s motion raised challenges to both his conviction and his sentence. Federal Rule of Civil Procedure 60(b) is not a proper vehicle for challenging a criminal conviction and sentence, and Federal Rule of Criminal Procedure 52(b) merely prescribes a standard of review. See Fed.R.Civ.P. 1; United States v. Speelman, 431 F.3d 1226, 1229-30 (9th Cir.2005) (describing three procedures for challenging a criminal sentence). We therefore affirm the district court’s denial of the motion under Rules 52(b) and 60(b).

Pro se pleadings must be liberally construed, however, and at the time that he filed his motion, Madrigal Guizar retained the right to challenge his conviction and sentence collaterally under 28 U.S.C. § 2255 . See 28 U.S.C. § 2255 (f). Madrigal Guizar’s motion raised both a claim of ineffective assistance of counsel and a claim that his sentence is unconstitutional. Contrary to the…