United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court under rule 4(b) of the
Rules Governing Section 2255 Proceedings upon Movant
Francisco Burciaga's motion re: Johnson v. U.S., 135
S.Ct. 2551 June 26, 2015 (CV Doc. 1, CR Doc. 325). The Court
construes Burciaga's motion 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. (CR Doc. 282. See, also, CV 15-00460 MV/GBW
Doc. 1). After the Court allowed him an opportunity to file a
2255 motion in proper form, 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,
including ineffective assistance of counsel. (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).
has now filed a motion seeking to challenge his sentence
under the Supreme Court's decision in Johnson v.
United States, ___ U.S.___, 135 S.Ct. 2551 (2015). The
exclusive remedy for testing the validity of a judgment and
sentence is that provided for in 28 U.S.C. § 2255.
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). The Court will construe Burciaga's motion as a
second or successive 2255 motion. See, e.g., Peach v.
United States, 468 F.3d 1269, 1270 (10th Cir.
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).
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. When a 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).
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 appears to seek relief based
on a new rule of constitutional law as announced in
Johnson. In Johnson, the Supreme Court held
that the residual clause of the ACCA is impermissibly vague
and imposing an increased sentence under the residual clause
violates the Constitution's guarantee of due process. 135
S.Ct. at 2562-63.
the ACCA, a defendant convicted of being a felon in
possession of a firearm faces more severe punishment if he
has three or more previous convictions for a “violent
felony.” 18 U.S.C. § 924 (e)(2)(B). The Act
defines “violent felony” to mean:
“any crime punishable by imprisonment for a term
exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
Johnson Court struck down the italicized residual
clause language of § 924(e)(2)(B)(ii) as
unconstitutionally vague. 135 S.Ct. at 2555-63.
however, was not sentenced under the ACCA, nor did he receive
an enhanced sentence for prior violent felony convictions.
Instead, he received an enhanced sentence based on prior
felony drug trafficking convictions. (See CR Doc.
361). Therefore, Johnson has no application to his
sentence and even if he were authorized to proceed by the
Tenth Circuit, he could not obtain any relief under
Johnson. The Court also determines under rule 11(a)
of the Rules Governing Section 2255 Cases that Burciaga has