No. CR 07-544-TUC-SMM, No. CV 08-684-TUC-SMM.
January 29, 2009
STEPHEN McNAMEE, Chief District Judge
On December 22, 2008, the Court received a "Petition § 2255" (Doc. 1) that Movant Abraham Heredia-Oliva had sent to the Ninth Circuit Court of Appeals. The Court will dismiss the § 2255 motion without prejudice because the Court lacks subject matter jurisdiction over this second habeas petition.
I. Background
Pursuant to a plea agreement, Movant pled guilty to Illegal Re-entry after Deportation, in violation of 8 U.S.C. § 1326(a), enhanced by (b)(2). On May 30, 2008, the Court sentenced Movant to a 51-month term of imprisonment followed by 36 months on supervised release (Doc. 43).
On June 4, 2008, Movant filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 44). In a June 9, 2008 Order, the Court summarily dismissed the Motion, concluding that Movant had waived the right to file a § 2255 Motion (Doc. 46). The Clerk of Court entered Judgment accordingly (Doc. 47). Movant's current § 2255 Motion, therefore, is his second § 2255 Motion.
II. Discussion
Under 28 U.S.C. §§ 2255 and 2244, a movant may not file a second or successive § 2255 motion in the district court unless the movant has obtained a certification from the Ninth Circuit Court of Appeals authorizing the district court to consider the second § 2255 motion. 28 U.S.C. 2244(b); 28 U.S.C. 2255.
The Court already rejected Movant's first § 2255 motion. Movant's current motion, therefore, is his second § 2255 motion. Because Movant has failed to obtain permission from the Ninth Circuit before filing this second § 2255 motion, the Court lacks subject matter jurisdiction over the second § 2255 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). The Court, however, will dismiss the case without prejudice so that Movant can seek certification from the Ninth Circuit Court of Appeals to file a second or successive § 2255 motion.
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. Moreover, the Court will direct the Clerk of Court to provide Movant with a form recommended by the Ninth Circuit for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.
Accordingly,
IT IS HEREBY ORDERED:
(1) Movant's "Petition § 2255" (Doc. 51 in CR-07-544-TUC-SMM) is denied without prejudice and the civil action opened in connection with this Motion (CV 08-684-TUC-SMM) is dismissed without prejudice to allow Movant to seek certification from the Ninth Circuit Court of Appeals to file a second or successive § 2255 motion.
(2) The Clerk of Court must send a copy of this Order and Movant's December 22, 2008 "Petition § 2255" (Doc. 51 in CR-07-544-TUC-SMM) to the Ninth Circuit Court of Appeals and to Plaintiff.
(3) The Clerk of Court must provide Movant with a copy of the form recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255. Form 12. Application for Leave to File Second or Successive Petition (New, 7/1/02) Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255 UNITED STATES COURT of APPEALS for the NINTH CIRCUIT 95 Seventh Street San Francisco, California 94103 Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255 Instructions — Read Carefully 28 U.S.C. § 2254 2255
Docket Number ___________________________________________________________________ (to be provided by court) Petitioner's name _______________________________________________________________ Prisoner registration number Address _________________________________________________________________________ (1) This application, whether handwritten or typewritten, must be legible and signed by the petitioner under penalty of perjury. An original and five (5) copies must be provided to the Clerk of the Ninth Circuit. The application must comply with 9th Circuit Rule 22-3, which is attached to this form. (2) All questions must be answered concisely. Add separate sheets if necessary. (3) The petitioner shall serve a copy of this application and any attachments on respondent and must complete and file a proof of service with this application. (4) The petitioner shall attach to this application copies of the magistrate judge's report and recommendation and the district court's opinion in any prior federal habeas proceeding under or § or state why such documents are unavailable to petitioner. You Must Answer the Following Questions:
For questions (4) through (9), provide information separately for each of your previous §§ 2254 or 2255 proceedings. Use additional pages if necessary. 28 U.S.C. § 2254 2255 dismissed denied granted (Attach copies of all reports and orders issued by the district court.) Date: Signature: Proof of Service on Respondent MUST be Attached. (1) What conviction(s) are you challenging? _________________________________________________________________________________ _________________________________________________________________________________ (2) In what court(s) were you convicted of these crime(s)? _________________________________________________________________________________ _________________________________________________________________________________ (3) What was the date of each of your conviction(s) and what is the length of each sentence? _________________________________________________________________________________ _________________________________________________________________________________ (4) With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus relief in federal court under or § ? Yes No (a) In which federal district court did you file a petition or motion? _____________________________________________________________________________ (b) What was the docket number? _____________________________________________ (c) On what date did you file the petition/motion? __________________________ (5) What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/motion) ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ (6) Did the district court hold an evidentiary hearing? Yes No (7) How did the district court rule on your petition/motion? District court petition/motion? If yes, on what grounds? ______________________________________________________________________ District court petition/motion; District court relief; if yes, on what claims and what was the relief? ______________________________________________________________________ (8) On what date did the district court decide your petition/motion? ____________________________________________________________________________ (9) Did you file an appeal from that disposition? Yes No (a) What was the docket number of your appeal? _____________________________ (b) How did the court of appeals decide your appeal? ________________________ ________________________________________________________________________________ ________________________________________________________________________________ (10) State concisely each and every ground or issue you wish to raise in your current petition or motion for habeas relief. Summarize briefly the facts supporting each ground or issue. ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ (11) For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when? ___________________________________________________________________________ (12) For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately) ___________________________________________________________________________ ___________________________________________________________________________ (13) For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each ground separately and give case name and citation for each new rule of law) ___________________________________________________________________________ ___________________________________________________________________________ (14) For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence and when did you discover it? Why has this newly discovered evidence not been previously available to you? (list each ground separately) ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ (15) For each ground/issue raised, does the newly discovered evidence establish your innocence? How? ___________________________________________________________________________ ___________________________________________________________________________ (16) For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how? ___________________________________________________________________________ ___________________________________________________________________________ (17) Provide any other basis for your application not previously stated. ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ __________________ _________________________