United States District Court, D. New Mexico
P. Martinez United States Attorney Jon K. Stanford Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the
Alfonzo Lezine Northeast New Mexico Detention Facility
Clayton, New Mexico Defendant/Movant pro se
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under rule 4 of the Rules
Governing Section 2255 Proceedings, on the
Defendant/Movant's Motion to Amend Judgment and Sentence,
filed September 6, 2016 (CIV Doc. 11; CR Doc.
58)(“Motion”). In his Motion, Defendant/Movant
Alfonso Lezine asks the Court to enter an amended judgment
directing that his federal and state sentences will run
concurrently. The Court lacks jurisdiction to grant Lezine
the relief that he requests. Accordingly, the Court will
dismiss the Motion.
AND PROCEDURAL BACKGROUND
10, 2012, a grand jury indicted Lezine on six counts of
interference with commerce by robbery and felon in possession
of a firearm. See Indictment at 1-4, filed July 10,
2012 (CR Doc. 2). Lezine pled guilty to five of the six
counts. See Plea Agreement at 2, filed April 16,
2013 (CR Doc. 36). On August 29, 2013, the Court sentenced
Lezine to 180 months of imprisonment. See Judgment
at 3, filed August 29, 2013 (CR Doc.
44)(“Judgment”). The Judgment entered on his
sentence ordered that the terms of imprisonment on the
federal counts would run concurrently, but was silent as to
any state court sentence. See Judgment at 3. At the
time of his sentencing, Lezine had state criminal charges
pending against him, but the New Mexico state courts had not
sentenced him. On April 4, 2014, he was convicted on the
state criminal charges and sentenced to twenty-two years of
incarceration with nine of those years suspended. The state
court ordered that his state sentence run concurrently with
his federal sentence. See State of New Mexico v.
Lezine, D-202-CR-201201610, CLS: Judgment/Habitual,
filed April 21, 2014 (text-only-entry).
filed his first motion under 28 U.S.C. § 2255 on August
19, 2014, raising claims of ineffective assistance of
counsel, based largely on counsel's alleged failure to
request concurrent federal and state sentences. See
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody at 5, filed
August 29, 2014 (CIV Doc. 1; CR doc. 50). On February 22,
2015, the Honorable Karen B. Molzen, Chief Magistrate Judge,
entered Proposed Findings and Recommended Disposition, filed
February 22, 2015 (CIV Doc. 6; CR Doc.
55)(“PFRD”), concluding that Lezine had failed to
establish ineffective assistance of counsel and recommending
denial of his § 2255 motion. The Court adopted the Chief
Magistrate Judge's PFRD and entered Final Judgment on the
§ 2255 motion on March 30, 2015. See Memorandum
Opinion and Order Adopting the Magistrate Judge's
Proposed Findings and Recommended Disposition at 1, filed
March 30, 2015 (CIV Doc. 8; CR Doc. 56)(“MOO”);
Final Judgment at 1, filed March 30, 2015 (CIV Doc. 9; CR
filed his current Motion on September 6, 2016. See
Motion at 1. In his Motion, Lezine requests that the Court
amend his sentence and Judgment to order that his federal and
state sentences run concurrently. See Motion at 1-2.
REGARDING SECOND OR SUCCESSIVE § 2255
exclusive remedy for testing a judgment and sentence's
validity is that remedy which 28 U.S.C. § 2255 provides.
See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). A motion that seeks to modify a sentence or judgment
is properly construed as a § 2255 motion. Moreover,
where final judgment has been entered on a prior § 2255
motion, the motion is a second or successive motion for
purposes of § 2255. See, e.g.,
Peach v. United States, 468 F.3d 1269, 1270 (10th
2255 provides that a panel of a Court of Appeals must certify
a second or successive motion in accordance with 28 U.S.C.
§ 2244 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 which
the Supreme Court made retroactive to cases on collateral
review. See 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. See 28
U.S.C. § 2244(b)(3)(A).
district court does not have jurisdiction to address the
merits of a second or successive § 2255 or 28 U.S.C.
§ 2254 claim until [the Court of Appeals] has granted
the required authorization.” In re Cline, 531
F.3d 1249, 1251 (10th Cir. 2008)(citing United States v.
Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)). When a
second or successive § 2255 motion is filed in the
district court without the required authorization from the
Court of Appeals, the district court may dismiss or may
transfer the matter to the Court of Appeals if it determines
that transfer is “in the interest of justice pursuant
to [28 U.S.C.] § 1631.” In re Cline, 531
F.3d at 1252 (quoting Coleman v. United States, 106
F.3d 339, 341 (10th Cir. 1997)).
REGARDING DESIGNATION OF PLACE OF CONFINEMENT AND
CONCURRENT FEDERAL/STATE SENTENCES
federal sentence is imposed before an anticipated state
criminal sentence, the federal district court has discretion
to order that the federal sentence will run concurrently with
the state sentence. See Setser v. United States, 556
U.S. 231, 233-45 (2012). The federal Bureau of Prisons
(“BOP”) is given primary authority over and is
responsible for designating the place of a prisoner's
federal confinement under 18 U.S.C. § 3621(b). See
United States v. Miller, 594 F.3d 1240, 1242 (10th Cir.
2010). Section 3621(b) gives the BOP authority to order that
a prisoner serve his federal sentence in any
suitable prison facility “whether maintained by the
Federal Government or otherwise.” Accordingly,
“when a person subject to a federal sentence is serving
a state sentence, the Bureau may designate the state prison
as the place of imprisonment for the federal sentence
--effectively making the two sentences concurrent -- or
decline to do so -- effectively making them
consecutive.” Setser v. United States, 556
U.S. at 1467-68 (footnote omitted).
Program Statement 5160.05 (Designation of State Institution
for Service of Federal Sentence, Jan. 16, 2003), describes
the administrative procedures for the designation of a state
institution for concurrent service of a federal sentence.
This Program Statement also provides for the BOP's
consideration of an inmate's request for nunc pro tunc
designation allowing credit toward a federal sentence for
time spent in service of a state sentence. See BOP
Program Statement 5160.05, ¶ 9.b(4), at 4-5. The BOP can
exercise this authority, however, only when it is ...