United States District Court, D. New Mexico
C. Anderson United States Attorney Kyle T. Nayback Jennifer
M. Rozzoni Glynette R. Carson-McNabb Thomas Aliberti Jacob
Alan Wishard Assistant United States Attorneys United States
Attorneys Office Albuquerque, New Mexico Attorneys for the
J. Yazzie Federal Correctional Institution Big Spring, Texas
Defendant/Movant pro se
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on the Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, filed March 1, 2018 (Doc.
231)(“Motion”). The Court dismisses the Motion as
a second or successive motion under 28 U.S.C. § 2255
that Defendant/Movant Willis J. Yazzie filed without the
United States Court of Appeals for the Tenth Circuit's
AND PROCEDURAL BACKGROUND
pled guilty and was sentenced to 188 months of imprisonment
for aggravated sexual abuse in Indian Country in violation of
18 U.S.C. § 1153. See Plea Agreement, filed
February 9, 2011 (Doc. 38); Judgment in a Criminal Case,
filed May 8, 2014 (Doc. 158)(“Judgment”). Yazzie
filed his first, handwritten, motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 on October 3,
2014. See Motion to Vacate Under 28 U.S.C. 2255,
filed October 3, 2014 (Doc. 195)(“First Motion”).
In his First Motion, Yazzie sought to have his sentence set
aside on the grounds of ineffective assistance of counsel.
See First Motion at 1-2. The Court entered a
Memorandum Opinion and Order Adopting the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed October 31, 2015 (Doc. 215)(“MOO”),
adopting the Magistrate Judge's Proposed Findings and
Recommended Disposition and dismissing Yazzie's First
Motion on October 31, 2015. See MOO at 9. In its
MOO, the Court concluded that Yazzie had failed to show that
he received ineffective assistance of counsel during his
criminal trial and denied Yazzie a certificate of
appealability. See MOO at 4, 7-9. Yazzie then sought
a certificate of appealability from the Tenth Circuit.
See Notice of Appeal, filed November 9, 2015 (Doc.
216). The Tenth Circuit denied a certificate of
appealability, determining that the Court was correct in
concluding that Yazzie had failed to demonstrate ineffective
assistance of counsel. See Order Denying Certificate
of Appealability, filed February 4, 2016 (Doc. 223).
Motion, Yazzie contends that the Court should not have
“summarily” rejected his ineffective assistance
of counsel argument and seeks to raise the same grounds for a
second time. See Motion at 4.
LAW GOVERNING SECOND OR SUCCESSIVE § 2255
statutes governing federal habeas corpus proceedings provide:
No circuit or district judge shall be required to entertain
an application for a writ of habeas corpus to inquire into
the detention of a person pursuant to a judgment of a court
of the United States if it appears that the legality of such
detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas
corpus, except as provided in section 2255.
28 U.S.C. § 2241(a).
2255 states that, in accordance with § 2244, a Court of
Appeals panel must certify a second or successive motion to
contain: (i) 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 (ii) a new rule of constitutional law that
was previously unavailable and was made retroactive to cases
on the Supreme Court of the United States' collateral
review. See 28 U.S.C. § 2255(h). Section 2244
requires that, before the movant files a second or successive
application in the district court, the applicant shall move
the appropriate Court of Appeals for an order authorizing the
district court to consider the application. See 28
U.S.C. § 2244(b)(3).
district court lacks jurisdiction to consider a second or
successive motion absent the requisite authorization. When a
movant files a second or successive § 2255 motion in the
district court without a Court of Appeals' required
authorization, the district court may dismiss or may transfer
the matter to the Court of Appeals under 28 U.S.C. §
1631 if it determines that it is in the interest of justice
to transfer. See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008).
filed his First Motion arguing ineffective assistance of
counsel. See First Motion at 1-2. The Court
dismissed the First Motion on the merits. See MOO at
9. Despite the Tenth Circuit's agreement with the
Court's dismissal, Yazzie seeks to reargue the
ineffective assistance issue for a second time. See
First Motion at 1, Motion at 2. Yazzie contends that the
Court should not have “summarily” dismissed his
First Motion, and the ...