United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on the Motion to Correct Sentence
filed by Movant Owen Puckett on January23, 2017 (CR Doc.
691). Puckett's Motion is a second or successive motion
under 28 U.S.C. § 2255 filed without authorization from
the Tenth Circuit Court of Appeals. The Court will dismiss
the Motion to Correct Sentence for lack of jurisdiction.
was indicted under an original and two superseding
indictments. (CR Doc. 1, 23, 193). Puckett entered into a
Plea Agreement on August 15, 2008. In the Plea Agreement,
Puckett agreed to a specific term of incarceration under Fed.
R. Crim. P. 11(c)(1)(C) of 240 months. Puckett also agreed to
waive any collateral attack pursuant to 28 U.S.C. § 2255
except on the issue of ineffective assistance of counsel. (CR
Doc. 320). The Court then sentenced Puckett to the agreed
term of imprisonment of 240 months. (CR Doc. 501, 502).
filed his first Motion under 28 U.S.C. § 2255 on May 31,
2016. (CR Doc. 672). In his Motion Puckett sought relief
under 28 U.S.C. § 2255 on the grounds that his sentence
was invalidly imposed under the Armed Career Criminal Act
(“ACCA”), based on the U.S. Supreme Court's
decision in Johnson v. United States, ___ U.S. ___,
135 S.Ct.2551 (2015). (CR Doc. 672). On June 6, 2016, the
Court entered its Memorandum Opinion and Order concluding
that Puckett is not eligible for relief under
Johnson. (CR Doc. 673).
timely appealed from the Court's Memorandum Opinion and
Order on June 29, 2016. (CR Doc. 676). The Tenth Circuit
dismissed the appeal for lack of prosecution on November 7,
2016. (CR Doc. 686). Puckett again challenged the Court's
June 6, 2016 Memorandum Opinion and Order by filing a Notice
of Writ of Mandamus on December 22, 2016. (CR Doc. 689). The
Court denied his request for a Writ of Mandamus on December
28, 2016. (CR Doc. 690).
filed his current Motion to Correct Sentence on January 23,
2017. (CR Doc. 691). Puckett again contends that the
Court's ruling on his Johnson claim was
incorrect and also seeks to add a new theory that he should
be relieved of his sentence based on ineffective assistance
of counsel in entering into the plea agreement. (CR Doc. 691
at 4). Puckett titles his motion as a “Motion to
Correct Sentence” but does not cite to 28 U.S.C. §
2255. The exclusive remedy for testing the validity of a
judgment and sentence, however, is the remedy provided for in
28 U.S.C. § 2255. Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996). Because Puckett's
Motion to Correct Sentence seeks to challenge the validity of
his sentence, the Court will construe his Motion as a
successive 2255 motion. See, e.g., Peach v. United
States, 468 F.3d 1269, 1270 (10th Cir.
2255 provides that a second or successive motion must be
certified in accordance with § 2244 by a panel of a
court of appeals to contain: (1) newly discovered evidence
that would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense; or (2) a new rule of
constitutional law that was previously unavailable and was
made retroactive to cases on collateral review by the Supreme
Court. 28 U.S.C. § 2255(h). Section 2244 requires that,
before a second or successive application is filed in the
district court, the applicant shall move the appropriate
court of appeals for an order authorizing the district court
to consider the application. 28 U.S.C. § 2244(b)(3)(A).
Puckett has filed his § 2255 motion without
authorization from a court of appeals as required by §
2244(b)(3)(A). This Court lacks jurisdiction to consider his
motion absent the requisite authorization.
second or successive § 2255 motion is filed in the
district court without the required authorization from a
court of appeals the district court may dismiss or may
transfer the matter to the court of appeals if it determines
it is in the interest of justice to do so under 28 U.S.C.
§ 1631. See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008). Applying Cline, the
Court determines it is not in the interests of justice,
declines to transfer, and will dismiss this matter for lack
of jurisdiction. In order to proceed on a second or
successive § 2255 motion, Puckett would need to present
grounds for relief based on either newly discovered evidence
or a new rule of constitutional law. 28 U.S.C. §
2255(h). Puckett presents neither but, instead, seeks to
argue ineffective assistance grounds that were available to
him at the time he filed his first § 2255 motion.
See United States v. Williams, 480 Fed. App'x
503, 504-05 (10th Cir. 2012). Further, to the
extent Puckett contends the Court's June 6, 2016 ruling
was incorrect, Puckett chose not to prosecute his appeal from
that ruling and cannot now seek to challenge it through
another collateral proceeding. See, e.g., Gibson v.
Fleming, 28 Fed. App'x 911, 913 (10th
Court also determines, sua sponte under 28 U.S.C.
§ 2253(c) and rule 11(a) of the Rules Governing Section
2255 Cases, that Puckett has failed to make a substantial
showing that he has been denied a constitutional right. The
Court will deny a certificate of appealability pursuant to 28
U.S.C. § 2253(c)(2).
ORDERED that Movant Owen Puckett's Motion to Correct
Sentence (CR Doc. 691) is DISMISSED for lack of jurisdiction,
a certificate of ...