United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court, sua sponte,
under Rules 4 and 11 of the Rules Governing Section 2254
Cases, on the Petition Under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus by a Person in State Custody filed by
Petitioner Joseph Rascon. (Doc. 1). The Court will dismiss
the Petition without prejudice for lack of jurisdiction.
previous § 2254 proceeding, Joseph Rascon v. Tim
LeMaster, et al., No. CV 01-00845 JP/KBM, Petitioner
attacked the same 1998 state court criminal conviction in
State of New Mexico cause no. D-202-CR-97-1611 that is the
subject of this proceeding. (Doc. 1 at 1 and CV 01-00845
JP/KBM Doc. 1). After entry of final judgment in No. CV
01-00845, Rascon partially succeeded in a New Mexico State
habeas corpus proceeding and was resentenced on September 8,
2015. (Doc. 1-3 at 18). The partial granting of his state
habeas corpus petition vacated six counts against him, but
left intact his underlying conviction and the sentence on the
remaining counts. (Doc. 1 at 17; Doc. 1-3 at 17-19).
grounds Rascon seeks to assert in his current § 2254
Petition arise out of the trial proceedings leading to his
original 1998 conviction, rather than any issues relating to
his 2015 resentencing. In his present § 2254 Petition,
he raises the same claims of denial of Sixth Amendment right
to counsel and Fifth Amendment rights, denial of a speedy
trial, denial of due process rights relating to a motion to
compel production of medical records, admission of a video
deposition at trial, and ineffective assistance of counsel at
the 1998 trial. Compare Doc. 1 at 5-21 with CV
01-00845, Docs. 1, 10, 21. See, also, Duhart v.
Carlson, 469 F.2d 471, 47310th Cir. 1972) (noting that
the court may take judicial notice of its own records.)
28 U.S.C. § 2244(b)(1), “a claim presented in a
second or successive habeas corpus application under section
2254 that was presented in a prior application shall be
dismissed.” A claim that was not presented in a prior
application must also be dismissed unless the applicant shows
either (1) that the claim relies on a new rule of
constitutional law that was previously unavailable and was
made retroactive to cases on collateral review by the Supreme
Court or (2) that the factual predicate for the claim was
previously unavailable and would be sufficient to establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense. 28 U.S.C. §
a second § 2255 motion challenging only the original,
underlying conviction is still barred as a second or
successive motion even if the second § 2254 motion is
filed after imposition of an amended state court sentence.
See Suggs v. United States, 705 F.3d 279 (7th Cir.
2013); In re Lampton, 667 F.3d 585 (5th Cir. 2012).
A motion is still a second or successive motion where it
challenges the underlying conviction, not the resentencing.
Suggs, 705 F.3d at 284. The “second or
successive” rule still applies where the state
court's amended judgment vacated a conviction and
sentence on some, but not all, offenses and the convictions
and sentences on the remaining offenses, as well as the
judgment imposing them, was undisturbed. In re
Lampton, 667 F.3d at 588-89.
claims attacking his 1998 conviction and sentence were raised
in his prior § 2254 proceeding and must be dismissed. 28
U.S.C. § 2244(b)(1); Coleman v. United States,
106 F.3d 339, 341 (10th Cir. 1997). Moreover, Petitioner
Rascon does not rely on any new constitutional law that was
previously unavailable and made retroactive on collateral
review by the United States Supreme Court. See 28
U.S.C. § 2244(b)(2)(A); Tyler v. Cain, 533 U.S.
656 (2001). Nor does Petitioner argue or rely on a factual
predicate (1) that could not have been discovered previously
through the exercise of due diligence and (2) is sufficient
to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense. 28
U.S.C. § 2244(b)(2)(B). Instead he raises the same
claims he raised on direct appeal and collateral review
following the 1998 conviction. (Doc. 1-2 at 2-23, 27; Doc.
1-4 at 1-36). The grounds Petitioner relies on were available
to him at the time he was sentenced and are insufficient to
establish that any reasonable factfinder would have absolved
Petitioner of guilt for the charged offenses. 28 U.S.C.
§ 2244(b)(2)(B); United States v.
Espinosa-Saenz, 235 F.3d 501, 505 (10th Cir. 2000).
before a second or successive petition is filed in the
district court, the petitioner must move the court of appeals
for an order authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(3)(A). When a second or
successive § 2254 claim is filed in the district court
without the required authorization from the court of appeals,
the district court 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 or may dismiss the petition
for lack of jurisdiction. In re Cline, 531 F.3d
1249, 1252 (10th Cir. 2008); see also Coleman v. United
States, 106 F.3d 339, 341 (10th Cir. 1997). The current
Petition is Petitioner's second and is not accompanied by
an authorizing order from the court of appeals. Under §
2244(b)(1), the Court lacks jurisdiction to proceed and must
either dismiss Rascon's Petition or transfer this
proceeding to the Tenth Circuit. Applying the Cline
factors, the Court finds it is not in the interest of justice
to transfer the proceeding.
has filed his second or successive §2254 Petition
without authorization from the Tenth Circuit Court of
Appeals. 28 U.S.C. § 2241(b)(3). Petitioner also fails
to establish any grounds that would permit him to proceed on
a second or successive petition. 28 U.S.C. § 2244(b)(2).
Although some counts were vacated, his Petition attacks the
conviction and remaining sentence for the underlying offenses
that were the subject of his prior § 2254 petition.
In re Lampton, 667 F.3d at 588-89. The Court
declines to transfer the Petition to the Tenth Circuit and
will dismiss for lack of jurisdiction. Coleman v. United
States, 106 F.3d at 341. Under Rule 11 of the Rules
Governing Section 2254 Cases, because Petitioner has failed
to make a substantial showing of denial of a constitutional
right, the Court will also deny a certificate of
IS ORDERED that the Petition Under 28 U.S.C. §
2254 for a Writ of Habeas Corpus by a Person in State Custody
filed by Petitioner Joseph Rascon (Doc. 1) is
DISMISSED without prejudice for lack of
jurisdiction, a ...