United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK UNITED STATES DISTRICT JUDGE
MATTER comes before the Court, sua sponte
under Rule 4(b) of the Rules Governing Section 2255
Proceedings, upon Defendant/Movant David Anthony Teague's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody
(“Motion”) (Doc. 138). Teague's Motion is a
second or successive motion under 28 U.S.C. § 2255 filed
without authorization from the United States Court of Appeals
for the Tenth Circuit, and the Court will dismiss the Motion
for lack of jurisdiction.
Anthony David Teague was sentenced to 21 months imprisonment
on March 26, 2004, for Threat to Injure a Person Through
Interstate Commerce in violation of 18 U.S.C. § 875(c).
(Doc. 61.) Teague filed a direct appeal of his conviction and
sentence on April 2, 2004. (Doc. 63). The Tenth Circuit
affirmed his conviction and sentence on May 15, 2006. (Doc.
filed his first motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 attacking the conviction
and sentence in this case on March 30, 2007. (Doc. 74.) The
Court dismissed Teague's § 2255 Motion with
prejudice and entered Judgment against him on August 16,
2007. (Doc. 81.) After he finished his sentence, but while
incarcerated on Texas state criminal charges in Texas, Teague
then filed a Petition for Writ of Error Coram Nobis on July
25, 2016. (Doc. 82.) Teague sought to have his conviction in
this case set aside because it was allegedly being used to
improperly enhance his Texas state sentence. (Doc. 82.) The
Magistrate Judge issued Proposed Findings and a Recommended
Decision (“PFRD”) on August 25, 2017,
recommending that Teague's Petition for Writ of Error
Coram Nobis be denied with prejudice. (Doc. 130.) The
District Judge adopted the Magistrate's Judge's PFRD
and denied the Petition with prejudice on October 27, 2017.
filed his current Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody on December 26, 2017. (Doc. 138.) In his current
Motion, Teague again attacks his now-completed sentence in
this case, contending that it is being used to improperly
enhance his Texas state sentence. (Doc. 138 at 11.)
Teague's current Motion constitutes a second or
successive § 2255 and is filed in violation of 28 U.S.C.
§§ 2244 and 2255.
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
interest of justice, declines to transfer, and will dismiss
this matter for lack of jurisdiction. Teague is no longer in
federal custody and, as a consequence, may no longer seek
relief under § 2255. Instead, Teague may only attack his
federal conviction and sentence by a petition for writ of
error coram nobis, which Teague has already done. United
States v. Denedo, 556 U.S. 904, 911 (2009); see also
Klein v. United States, 880 F.2d 250, 253 (10th Cir.
1989); Igo v. United States, 303 F.2d 317, 318 (10th
Cir. 1962). Because Teague may no longer obtain relief under
§ 2255, it is unlikely that the Tenth Circuit would
authorize him to proceed on a second or successive §
2255 motion. It would not serve the interest of justice for
this Court to transfer Teague's § 2255 Motion to the
Tenth Circuit, and the Court will dismiss the Motion for lack
of jurisdiction. Cline, 531 F.3d at 1252.
under 28 U.S.C. § 2253(c)(1), “[u]nless a circuit
justice or a judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . .
(B) the final order in a proceeding under section
2255.” A certificate of appealability may issue under
§ 2253(c)(1) only if the movant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Rule 11(a) of the Rules Governing Section
2255 Cases provides that the district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the § 2255 movant. The Court
determines, sua sponte under Rule 11(a) of the Rules
Governing Section 2255 Cases, that Teague has failed to make
a substantial showing that he has been denied a
constitutional right and the Court will deny a certificate of
(1) Defendant/Movant Anthony David Teague's Request for
Order to Respond (Doc. 140) is DENIED as
(2) Anthony David Teague's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“Motion”) (Doc. 138) ...