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holding that petitioner's 2255 motion, premised upon the applicability of Amendment 794, was second or successive, and, therefore, the district court lacked subject matter jurisdiction
Summary of this case from Rice v. United StatesOpinion
Criminal No. 06-167 Civil No. 16-1677
04-06-2017
MICHAEL MENDOZA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
cc: Donovan Cocas Assistant U.S. Attorney Michael Mendoza
OPINION
I. Introduction
Pending before the court is a second Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (the "second § 2255 motion") filed by pro se petitioner Michael Mendoza ("petitioner"). (ECF No. 158.) Petitioner claims that he is eligible for a sentence reduction pursuant to Amendment 794, which amended the commentary to U.S.S.G. § 3B1.2 effective November 1, 2015. Id. at 4. In response, the government argues that this court lacks jurisdiction to decide petitioner's motion because it is a second or successive § 2255 motion. (ECF No. 159 at 4-5.) Alternatively, the government asserts that even if this court were to construe petitioner's second § 2255 motion as a motion under 18 U.S.C. § 3582(c)(2), he still would not be entitled to relief because his sentence was not based on a guideline range subsequently lowered by the Sentencing Commission, and Amendment 794 does not apply retroactively to cases on collateral review. Id. at 6-8.
The government is correct. Petitioner previously filed a § 2255 motion, and he did not receive authorization from the United States Court of Appeals for the Third Circuit to file a second or successive § 2255 motion. Therefore, this court lacks subject-matter jurisdiction over petitioner's second § 2255 motion, and the motion must be dismissed for the reasons stated more fully herein. Even if the court were to consider petitioner's pro se filing as a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), he would not be eligible for relief on the basis of Amendment 794.
II. Background
On July 31, 2007, petitioner was charged in a one-count superseding indictment with conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. (ECF No. 70.) Following a jury trial, petitioner was found guilty and the court entered a judgment against him on December 12, 2007, imposing a mandatory minimum sentence of 240 months imprisonment followed by a 10-year term of supervised release. (ECF No. 92.)
After petitioner filed a timely appeal, the government received and provided defense counsel with a Report of Investigation ("ROI") regarding the debriefing of a confidential informant prepared by an agent of the Drug Enforcement Agency as part of a separate investigation. (See ECF No. 153 at 2.) On appeal, petitioner argued that the newly produced evidence was exculpatory, and that he should be granted an evidentiary hearing or a new trial. See United States v. Mendoza, 334 F. App'x 515, 519 (3d Cir. 2009). The Third Circuit Court of Appeals affirmed petitioner's conviction and declined to review his new evidence argument because this court did not have an opportunity to review it in the first instance. Id.
On August 10, 2010, petitioner filed a pro se motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 (the "Rule 33 motion"), arguing that the belated disclosure of the ROI constituted a Brady violation. (ECF No. 108.) On September 28, 2010, petitioner filed a § 2255 motion alleging that his trial counsel was ineffective for failing to file a Rule 33 motion based upon the newly discovered evidence (the "first § 2255 motion"). (ECF No. 113.)
This court appointed an assistant federal public defender to represent petitioner at a hearing on the Rule 33 motion and the first § 2255 motion, which was held on June 7, 2012. (ECF Nos. 135 and 145.) In a memorandum opinion and order dated August 6, 2013, the court concluded that the ROI did not constitute Brady material and denied petitioner's Rule 33 motion. (ECF No. 153 at 26.) The court also denied petitioner's first § 2255 motion, finding that his trial counsel was not ineffective for failing to file a Rule 33 motion. Id. at 28. The court did not issue a certificate of appealability. Id.
On October 3, 2013, plaintiff filed a notice of appeal of the court's denial of his Rule 33 motion and first § 2255 motion. (ECF No. 154.) On April 21, 2014, the Third Circuit Court of Appeals denied petitioner's application for a certificate of appealability in connection with the first § 2255 motion and summarily affirmed the denial of petitioner's Rule 33 motion. (ECF No. 157.)
On November 7, 2016, petitioner filed the pending second § 2255 motion, in which he argues that he is eligible for a sentence reduction under Amendment 794 because he was a minor participant in the offense of conviction. (ECF No. 158 at 4.) As previously noted, the government filed a response in opposition to petitioner's second § 2255 motion (ECF No. 159), and the matter is now ripe for disposition.
III. Discussion
A. Law applicable to second or successive § 2255 motions
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (the "AEDPA"), which established stringent procedural and substantive requirements that an applicant must satisfy in order to file a second or successive § 2255 motion with a district court. See United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999). Among other things, the AEDPA requires that before filing a second or successive § 2255 motion with a district court, an applicant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A); see also, Rule 9 of the Rules Governing § 2255 Proceedings (requiring that "[b]efore presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion . . ."). The court of appeals may authorize the filing of a second or successive § 2255 motion in the district court only if it contains the following:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or28 U.S.C. § 2255(h)(1) and (2).
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Section 2255(h), read in conjunction with § 2244(b)(3)(A) and Rule 9, establishes that a district court lacks subject-matter jurisdiction over an unauthorized second or successive § 2255 motion. See In re Olabode, 325 F.3d 166, 169 (3d Cir. 2003) ("Before a second or successive § 2255 motion may be filed in the district court, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the motion."); Lugo v. Zickefoose, 427 F. App'x 89, 92 (3d Cir. 2011) ("We also agree with the District Court's ultimate conclusion that it lacked subject matter jurisdiction over the petition, treated as a second or successive § 2255 motion."). In other words, if a petitioner does not first obtain authorization from the court of appeals to file a second or successive § 2255 motion, the district court is not empowered to decide the motion.
Once it is determined that a petitioner's filing is an unauthorized second or successive § 2255 motion, a district court within the Third Circuit may proceed by either (1) dismissing the motion for lack of subject-matter jurisdiction, or (2) transferring the motion to the court of appeals pursuant to 28 U.S.C. § 1631 for consideration as an application to file a second or successive petition. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) ("When a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631."). Section 1631 provides that a court lacking jurisdiction over a case "shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed . . . ." In deciding whether it would be in the interest of justice to transfer a second or successive § 2255 motion to the court of appeals, it is proper for the district court to consider whether the petitioner has "alleged facts sufficient to bring his petition within the gatekeeping requirement of § 2255 permitting 'second or successive' petitions based upon newly discovered evidence or a new rule of constitutional law." Hatches v. Schultz, 381 F. App'x 134, 137 (3d Cir. 2010) (citing 28 U.S.C. § 2255(h)).
B. Petitioner's second § 2255 motion must be dismissed for lack of subject-matter jurisdiction.
By way of his second § 2255 motion, petitioner asks this court to entertain a new basis to challenge his sentence that was not presented in his previously denied first § 2255 motion. Petitioner filed the second § 2255 motion without receiving authorization from the Third Circuit Court of Appeals to file a second or successive § 2255 motion. Accordingly, this court is without subject-matter jurisdiction to decide petitioner's second § 2255 motion. See Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) ("A petitioner's failure to seek such authorization from the appropriate appellate court before filing a second or successive habeas petition 'acts as a jurisdictional bar.'" (quoting United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000))).
Where, as here, a petitioner files an unauthorized second or successive § 2255 motion, the district court may either dismiss the motion or transfer it to the court of appeals for consideration as an application to file a second or successive motion. See Robinson, 313 F.3d at 139. To determine whether it is in the interest of justice to transfer petitioner's second § 2255 motion to the Third Circuit Court of Appeals, it is appropriate for this court to consider whether it falls within the gatekeeping requirement of § 2255 permitting second or successive motions based upon newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review. See Hatches, 381 F.App'xat 137 (finding that the district court's inquiry about the factual premise of the petitioner's claims for purposes of determining whether it was in the interest of justice to transfer the petition to the court of appeals did not require, and the district court did not express, any opinion on the merits of the claims); United States v. Solomon, Crim. Nos. 05-350 and 05-385, 2014 WL 3402010, at *2 (W.D. Pa. July 10, 2014) (determining that the petitioner's second or successive § 2255 motion should be dismissed, instead of transferred, because it did not fall within the gatekeeping requirement of § 2255).
Upon such consideration, the court concludes that petitioner did not allege facts indicating that the claim advanced in the second § 2255 motion satisfies § 2255's gatekeeping requirements. Petitioner did not point to any newly discovered evidence that would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty or cite any new rule of constitutional law that has been made retroactively applicable to cases on collateral review. Therefore, petitioner's second § 2255 motion must be dismissed for lack of subject-matter jurisdiction rather than transferred to the Third Circuit Court of Appeals.
C. In the alternative , even if this court were to consider petitioner's pro se motion under 18 U.S.C. § 3582(c)(2) , he would not be eligible for relief.
Although petitioner filed his pro se motion under § 2255, he claims that he is "eligible for a sentence reduction pursuant to a newly amended § 3B1.2 of the U.S.S.G." (ECF No. 158 at 4.) Petitioner's claim refers to Amendment 794, which took effect on November 1, 2015, and amended the commentary to U.S.S.G. § 3B1.2 to provide district courts with additional guidance in determining whether a mitigating role adjustment applies. Petitioner's request to receive the retroactive benefit of an amendment to the Sentencing Guidelines issued years after he was sentenced is the kind of claim that must be brought under 18 U.S.C. § 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 825 (2010) (observing that § 3582(c)(2) gives courts the power to reduce or modify an otherwise final sentence in circumstances specified by the Sentencing Commission). Although the Third Circuit Court of Appeals has not considered whether a district court may construe a § 2255 motion as one filed under § 3582(c)(2), the Supreme Court generally has approved of courts ignoring the label that a pro se litigant attaches to a motion and recharacterizing it "to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Castro v. United States, 540 U.S. 375, 381-82 (2003) (citations omitted). Even if the court were to consider petitioner's pro se motion under § 3582(c)(2), he would not be eligible for relief on the basis of Amendment 794.
Section 3582(c)(2) allows for a reduction in the case of a defendant whose sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission," if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The "applicable policy statements" referenced in § 3582(c)(2) are those found in § 1B.10 of the Sentencing Guidelines. See U.S.S.G.§ 1B1.10(a)(1). A reduction is not consistent with the policy statements or authorized under § 3582(c)(2) if the amendment is not listed in § 1B1.10(d), or if the amendment is listed, but it does not have the effect of lowering the defendant's applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(A) and (B).
In view of this authority, petitioner would not be eligible for a sentence reduction even if the court were to consider his pro se motion under § 3582(c)(2). As stated, § 1B1.10(d) lists all the amendments that are eligible for retroactive effect, and Amendment 794 is not listed. See United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995) (stating that an amendment cannot be applied retroactively pursuant to § 3582(c)(2) if it is not listed in former § 1B1.10(c), now § 1B1.10(d)). Therefore, the court would not be authorized to reduce petitioner's sentence based on Amendment 794.
In United States v. Quintero-Leyva, 823 F.3d 519 (9
Even if Amendment 794 could be applied retroactively through § 3582(c)(2), a sentence reduction would not be authorized because Amendment 794 would not have the effect of lowering petitioner's applicable guideline range in this case. See U.S.S.G. § 1B1.10 cmt. n.1(A) (explaining that a sentence reduction is not authorized under § 3582(c)(2) if the amendment at issue "does not have the effect of lowering the defendant's applicable guideline range because of the operation of another . . . statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."). This court did not apply § 3B1.2 in calculating petitioner's advisory guideline range, and his sentence was based upon the mandatory minimum term of 20 years' imprisonment required by statute. (ECF No. 90, ¶¶ 1, 3; ECF No. 95 at 7-8.) For this additional reason, Amendment 794 would not provide the basis for a § 3582(c)(2) sentence reduction.
IV. Conclusion
For the foregoing reasons, petitioner's second § 2255 motion will be dismissed because this court is without subject-matter jurisdiction to decide petitioner's motion. In the alternative, even if the court were to consider petitioner's pro se motion as a request for a sentence reduction under 18 U.S.C. § 3582(c)(2), he would not be eligible for relief on the basis of Amendment 794. An appropriate order will be entered.
V. Certificate of Appealability
When a district court issues a final order denying a § 2255 motion, the court also must make a determination about whether a certificate of appealability ("COA") should issue. Otherwise, the clerk of the court of appeals will enter an order remanding the case to the district court for a prompt determination about whether a COA should issue. See 3d Cir. L.A.R. 22.2. Where, as here, a district court denies relief on procedural grounds, a COA should issue if the petitioner ". . . shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Based upon the second § 2255 motion, files and records of the instant case, and for the reasons set forth herein, the court finds that no such showing was made in this case. Jurists of reason would not find it debatable that petitioner failed to show a substantial denial of a constitutional right, and jurists of reasons would not find it debatable that dismissal for lack of jurisdiction over the second § 2255 motion is the correct procedural ruling. Accordingly, a COA will not be issued.
s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge Date: April 6, 2017 cc: Donovan Cocas
Assistant U.S. Attorney
Michael Mendoza
th Cir. 2016), the Ninth Circuit Court of Appeals held that Amendment 794 applies retroactively on direct appeal, id. at 523, but declined to address the retroactivity of Amendment 794 in the context of collateral review. See id. at 521. n.1. The Third Circuit Court of Appeals has not ruled whether Amendment 794 applies retroactively; however, other courts that have considered the issue in the context of a collateral attack or a § 3582(c)(2) proceeding have held that Amendment 794 is not retroactive. See, e.g., Wesley v. United States, Crim. No. 09-49, 2017 WL 943950, at *2 (N.D. Miss. Mar. 9, 2017); United States v. Kuran, Crim. No. 13-160, 2017 WL 914816, at *4 (E.D. Pa. Mar. 8, 2017); Burgos v. United States, Crim. No. 08-1111-03, 2017 WL 945933, at *1 (S.D.N.Y. Mar. 2, 2017); United States v. Sprouse, Crim. No. 12-122, 2017 WL 218376, at *2 (E.D. Tenn. Jan. 18, 2017); Klosowski v. United States, Crim. No. 12-20458, 2016 WL 6696023, at *1 (E.D. Mich. Nov. 15, 2016) (collecting decisions).