United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Vacate and Correct
Sentence Under 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 147)
and supplement thereto (CV Doc. 2; CR Doc. 148). Defendant is
incarcerated and proceeding pro se. He asks the
Court to vacate his life sentence, which was imposed after
three felony drug convictions. After reviewing the motion
sua sponte under Habeas Corpus Rule 4(b), the Court
will dismiss Defendant's motion without prejudice for
lack of jurisdiction.
and Procedural History
December 4, 2002, Defendant was convicted pursuant to 21
U.S.C. §§ 841 and 846 of three charges relating to
the possession and distribution of methamphetamine.
See CR Doc. 67.The United States sought an enhanced
sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on
two prior felony convictions from Maricopa County Superior
Court: a 1991 conviction for conspiracy to possess cocaine
and a 1997 conviction for the sale of marijuana. See
Doc. 72. As a result of the enhancements, Defendant was
sentenced to life imprisonment on February 23, 2003.
See Doc. 76.
appealed to the Tenth Circuit Court of Appeals, which
affirmed the conviction on February 2, 2004. Defendant then
filed a petition for certiorari with the United States
Supreme Court, which was denied on October 4, 2004.
October 11, 2005, Defendant filed his first motion to vacate
or correct sentence pursuant 28 U.S.C. § 2255 (Doc. 92;
see also 6:05-cv-1074 BB/CG, CV Doc. 1). The motion
raised issues regarding coercion and ineffective assistance
of counsel. Id. By an order entered May 30, 2007,
the Court denied the first § 2255 motion and dismissed
the civil action with prejudice. See Doc. 49. The
Court found that the plea was voluntary and that
counsel's performance was objectively reasonable.
See Docs. 42, 49.
filed the second § 2255 motion on September 13, 2016,
though it was signed five days earlier. He seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) and Mathis v. United States, 136 S.Ct. 2243
(2016). Specifically, Defendant argues his prior cocaine
conviction only involved delivery, rather than an offer to
sell, which is insufficient to justify the enhanced sentence.
Defendant has not sought or received permission from the
Tenth Circuit to file a second or successive § 2255
district court does not have jurisdiction to address the
merits of a second or successive § 2255 … claim
until [the Tenth Circuit] has granted the required
authorization.” In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008). See also § 2255(h)
(requiring a second or successive motion to be certified by
the appropriate court of appeals). When the motion is filed
without authorization, the district court may transfer the
matter to the Tenth Circuit “if it determines it is in
the interest of justice to do so under § 1631, or it may
dismiss the motion or petition for lack of
jurisdiction.” Cline, 531 F.3d at 1252.
Factors to consider in evaluating whether a transfer is in
the interest of justice include:
[W]hether the claims would be time barred if filed anew in
the proper forum, whether the claims alleged are likely to
have merit, and whether the claims were filed in good faith
or if, on the other hand, it was clear at the time of filing
that the court lacked the requisite jurisdiction.
Id. at 1251.
there is no risk that a meritorious successive claim will be
lost absent a § 1631 transfer, a district court does not
abuse its discretion if it concludes it is not in the
interest of justice to transfer the matter to this court for
authorization.” Id. at 1252. To be
meritorious, a second or successive motion must be based on:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was