Opinion
No. CV 18-02095-PHX-DGC (JFM) CR 11-00513-PHX-DGC
09-18-2018
United States of America, Plaintiff, v. Julie Ann Overfield, Defendant/Movant.
ORDER
Movant Julie Ann Overfield, who is confined in the Federal Correctional Institution Hazelton in Bruceton Mills, West Virginia, has filed a "Motion for Reduction Pursuant to Sessions v. Dimaya, [138 S. Ct. 1204 (2018)]," which the Clerk of Court filed as a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion") to facilitate its consideration. The Court will summarily deny the Motion.
This is Movant's third § 2255 Motion challenging her conviction and sentence in CR 11-00513-PHX-DGC. The first motion was denied on the merits on August 22, 2016 (Doc. 388 in CR 11-00513-PHX-DGC). The second motion was denied as second or successive on January 3, 2017 (Doc. 407 in CR 11-00513-PHX-DGC).
Under 28 U.S.C. §§ 2255(h) and 2244, Movant may not file a second or successive § 2255 motion in the district court unless she has obtained a certification from the Ninth Circuit Court of Appeals authorizing the district court to consider the second or successive § 2255 motion. Because Movant has failed to obtain permission from the Ninth Circuit before filing this third § 2255 motion, the Court lacks subject matter jurisdiction over the motion and must dismiss it. See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (concluding that the district court lacked jurisdiction to consider a successive § 2255 motion when movant had failed to request certification from the appellate court prior to filing successive § 2255 motion in the district court); United States v. Alvarez-Ramirez, 128 F. Supp. 2d 1265, 1267 (C.D. Cal. 2001) (dismissing a second § 2255 motion for lack of subject matter jurisdiction because movant failed to obtain Ninth Circuit certification).
Pursuant to Ninth Circuit Rule 22-3(a), the Court will direct the Clerk of Court to refer Movant's second § 2255 motion to the Ninth Circuit Court of Appeals.
IT IS ORDERED:
(1) The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 454 in CR 11-00513-PHX-DGC) is denied and the civil action opened in connection with this Motion (CV 18-02095-PHX-DGC (JFM)) is dismissed without prejudice. The Clerk of Court must enter judgment accordingly.
(2) The Clerk of Court must send a copy of this Order and Movant's § 2255 Motion (Doc. 1 in CV 18-02095-PHX-DGC (JFM)) to the Ninth Circuit Court of Appeals and to Plaintiff United States of America.
(3) Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 18th day of September, 2018.
/s/_________
David G. Campbell
Senior United States District Judge