United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court, sua sponte
under Rule 4(b) of the Rules Governing Section 2255
Proceedings, upon Movant Conrad Vazquez Salazar's letter
motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence by a person in federal custody
(“Motion”) (Doc. 397.) Salazar'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.
pled guilty to Conspiracy to Maliciously Damage or Destruct,
by Means of Fire and/or Explosives in violation of 18 U.S.C.
§ 844(n) and Felon in Possession of a Firearm and
Ammunition in violation of 18 U.S.C. § 922(g)(1), §
924(a)(2), and § 924(e)(1), and was sentenced to 240
months of imprisonment. (Docs. 315; 324.) He filed his first
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 on June 9, 2016, and amended the motion on
June 13, 2016. (Docs. 335; 336.) In his first § 2255
motion, he raised ineffective assistance of counsel issues
and sought relief under Johnson v United States, 135
S.Ct. 25551 (2015). (Doc. 335.) On July 17, 2017, the
Magistrate Judge entered Proposed Findings and a Recommended
Decision (“PFRD”), finding that Salazar's
ineffective assistance of counsel claims failed and
recommended denial of the § 2255 motion. (Doc. 391.) The
Court adopted the Magistrate Judge's PFRD and entered
Judgment on August 25, 2017. (Doc. 396.)
then filed a handwritten letter, seeking to amend to add
additional claims to his prior § 2255 motion. (Doc.
391.) Because Salazar's first § 2255 motion has been
adjudicated on the merits and dismissed, the Court will treat
his letter as a second § 2255 motion and will dismiss
for lack of jurisdiction. See United States v.
Nelson, 465 F.3d 1145, 1148-49 (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).
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 to transfer and will dismiss this matter
for lack of jurisdiction. Salazar argues that he should be
granted relief based on a Tenth Circuit decision involving a
co-defendant and a Supreme Court decision that has not yet
been made retroactively applicable by the Supreme Court.
Salazar's arguments do not support authorization to file
a second or successive § 2255 motion. See
§ 2255(h); United States v. Williams, 480
Fed.Appx. 503, 504-05 (10th Cir. 2012).
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 Salazar has failed to make
a substantial showing that he has been denied a
constitutional right, and the Court will deny a certificate
IS ORDERED that Movant Conrad Vazquez Salazar's
letter motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence (Doc. 397; 18cv456, Doc. 1) is
DISMISSED for lack of jurisdiction, a
certificate of appealability is DENIED, and
judgment will be entered.
 All citations to document numbers
refer to documents in the criminal case, 12cr3183, unless