United States District Court, D. New Mexico
MEMORANDUM OPINION AND OF DISMISSAL
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court, sua sponte
under rule 4(b) of the Rules Governing Section 2255
Proceedings, upon Movant Francisco Burciaga's Amended and
Supplemental Pleading (CR Doc. 342). The Court construes
Burciaga's Amended and Supplemental Pleading as a second
or successive motion under 28 U.S.C. § 2255, and will
dismiss the motion for lack of jurisdiction.
25, 2008, Burciaga was charged with possession with intent to
distribute 1000 grams or more of heroin in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). (CR Doc.
1).Following an initial mistrial, Burciaga was found guilty
by a jury on May 31, 2013 (CR Doc.218). The Court entered
Judgment on the jury's verdict on November 26, 2013, and
sentenced him to 240 months of incarceration followed by ten
years of supervised release (CR Doc. 265).Burciaga appealed
to the United States Court of Appeals for the Tenth Circuit,
and the Judgment was affirmed on February 4, 2015. (CR Doc.
filed a rule 60(b) motion on June 1, 2015, which the Court
construed as stating a request for relief as a motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255. (See CR Doc. 282. See, also, CV 15-00460
MV/GBW Doc. 1). After the Court allowed him an opportunity to
file a proper § 2255 motion, Burciaga then filed his
first § 2255 motion to vacate his sentence on June 29,
2015. (CR Doc. 284). In his motion, supplemented by multiple
additional filings, he argued ten grounds for relief.
(See CR Doc. 284, 288, 290-295, 296-299, 305). The
Magistrate Judge entered Proposed Findings and Recommended
Decision, recommending denial of relief and dismissal of the
motion. (CR Doc. 306). The Court adopted the Magistrate
Judge's Proposed Findings and Recommended Decision,
denying the motion and dismissing with prejudice on February
29, 2016. (CR Doc. 310, 311). Burciaga then filed a rule
59(e) motion asking the Court to amend the final Order. (CR
Doc. 313). The Court denied the rule 59(e) Motion to Amend on
March 28, 2016. (CR Doc. 314). Burciaga appealed that ruling
and was denied a certificate of appealability by the Tenth
Circuit. (See CV 15-00460 Doc. 54, 56).
April 14, 2016, Burciaga filed a Motion for Judgment of
Acquittal (CR Doc. 315). The Court construed his Motion as a
second or successive § 2255 motion filed without Tenth
Circuit authorization. (CR Doc. 331). The Motion for Judgment
of Acquittal was then dismissed for lack of jurisdiction
under § 2255. (CR Doc. 331, 332). Burciaga did not
appeal that dismissal.
has now filed his Amended and Supplemental Pleading
purporting to seek leave to amend under Fed.R.Civ.P. 15(c).
(CR Doc. 342). Burciaga seeks relief based on an alleged
failure of the United States to comply with the procedural
requirements of 21 U.S.C. § 851(a). He requests that the
Court “grant him his 2255 motion (to strike or withdraw
the § 851 enhancement) and correct the sentence.”
(CR Doc. 342 at 3). Burciaga bases his Amended and
Supplemental Pleading on an apparent misunderstanding of a
footnote in the Tenth Circuit's Order denying a
certificate of appealability. (CR Doc. 342 at 1-2). However,
regardless of whether Burciaga misunderstands the Tenth
Circuit's Order, the relief he seeks is correction of his
sentence under § 2255 and the Court will construe the
Amended and Supplemental Pleading as a second or successive
§ 2255 motion filed without prior authorization by the
Tenth Circuit. See, e.g., Peach v. United States,
468 F.3d 1269, 1270 (10th Cir. 2006).
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).
Burciaga 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, Burciaga 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).
Burciaga presents neither but, instead, seeks to argue §
851 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, even if the United States Information under
§ 851 was untimely for purposes of Burciaga's first
trial, it was procedurally adequate for his second trial.
See CV 15-00460 Doc. 54 at 6-8. It is difficult to
see how there was any prejudice to Burciaga or how his
contentions would otherwise support relief under § 2255.
Strickland v. Washington, 466 U.S. 668, 688-94
has filed a Motion for Order to Review for Plain Error (Doc.
355), asking the Court to rule on his Amended and
Supplemental Pleading. Because the Court is dismissing the
Amended and Supplemental Pleading as an unauthorized second
or successive § 2255 motion, the Court will deny his
Motion for Order to Review for Plain Error. The Court also
determines, sua sponte under rule 11(a) of the Rules
Governing Section 2255 Cases, that Burciaga has failed to
make a substantial showing that he has been denied a
constitutional right. The Court will deny a certificate of
IS ORDERED as follows:
Amended and Supplemental Pleading (CR Doc. 342) is
DISMISSED for lack of jurisdiction; 2.
Francisco Burciaga's Motion for Order to Review for Plain
Error (Doc. 355 is DENIED; and 3. A
certificate of appealability is DENIED under
28 U.S.C. § 2253(c)(2) and Rule 11 of the ...