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 Motion
Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“
§ 2255 Motion”) (CR Doc. 343). The Court
determines that Burciaga's § 2255 Motion is a second
or successive motion under 28 U.S.C. § 2255 filed
without authorization, and will dismiss the § 2255
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.
filed his current § 2255 Motion on January 17, 2017. (CR
Doc. 343). Burciaga seeks relief based on an alleged
invalidity of his drug trafficking conviction and failure of
the United States to comply with the procedural requirements
of 21 U.S.C. § 851(a). (CR Doc. 343 at 12). Burciaga
bases his § 2255 Motion on an apparent misunderstanding
of a footnote in the Tenth Circuit's Order denying a
certificate of appealability. (CR Doc. 343 at 14-15).
However, regardless of whether Burciaga misunderstands the
Tenth Circuit's Order, the relief he seeks is correction
of his sentence under 28 U.S.C. § 2255 and the §
2255 Motion is 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
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
Francisco Burciaga's Motion Pursuant to 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (CR Doc. 343) is DISMISSED
for lack of jurisdiction; and
certificate of appealability is DENIED under
28 U.S.C. § 2253(c)(2) and Rule 11 of the Rules
Governing Section 2255 ...