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United States v. Guerrero

United States District Court, D. New Mexico

June 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE ESTEBAN GUERRERO, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         Before 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.

         Background and Procedural History

         On 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.[1]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.

         Defendant 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.

         On 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.

         Defendant 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 motion.

         Discussion

         “A 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.

         “Where 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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