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United States v. Lezine

United States District Court, D. New Mexico

March 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ALFONSO LEZINE, Defendant/Movant.

          Damon P. Martinez United States Attorney Jon K. Stanford Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff/Respondent

          Alfonzo Lezine Northeast New Mexico Detention Facility Clayton, New Mexico Defendant/Movant pro se


         THIS 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.


         On July 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).

         Lezine 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 Doc. 57).

         Lezine 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.


         The 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 Cir. 2006).

         Section 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).

         “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)).


         When a 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).

         BOP 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, ΒΆ 9.b(4), at 4-5. The BOP can exercise this authority, however, only when it is ...

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