Opinion
No. 3:18-CV-2616-G-BH No. 3:04-CR-0014-G
10-04-2018
NICOLAS SANCHEZ-GARCIA, Movant, v. UNITED STATES OF AMERICA, Respondent.
Referred to U.S. Magistrate Judge
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
By Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Before the Court is the motion under 28 U.S.C. § 2255, received on October 1, 2018 (docs. 2, 3). Based on the relevant findings and applicable law, the successive § 2255 motion should be transferred to the United States Court of Appeals for the Fifth Circuit.
I. BACKGROUND
Nicolas Sanchez-Garcia (Movant) was convicted of illegal reentry after removal from the United States in violation of 8 U.S.C. § 1826(a), (b)(2) and 6 U.S.C. §§ 202, 557, and he was sentenced to 100 months' imprisonment. On March 7, 2016, he filed a § 2255 motion to vacate that challenged his conviction and sentence. (See No. 3:16-CV-638-G, doc. 1.) It was dismissed as barred by the statute of limitations on May 17, 2017. (See id. doc. 20.)
Movant now contends that the statute under which he was convicted is unlawful. Movant's challenge to the statute under which he was convicted is a challenge to the conviction and sentence and is brought under § 2255. Movant's additional claims regarding time credit have been construed as arising in a 28 U.S.C. § 2241 petition and were severed, and a new case was opened for those § 2241 claims. (See doc. 4.)
II. JURISDICTION
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). They have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).
Movant previously filed a § 2255 motion. A subsequent § 2255 motion to vacate is considered second or successive when it: "1) raises a claim challenging the [defendant's] conviction or sentence that was or could have been raised in an earlier [motion to vacate]; or 2) otherwise constitutes an abuse of the writ." United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). Under Orozco-Ramirez, Movant was required to present all available claims related to her conviction or sentence in his first motion to vacate. This "requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court." 211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).
Movant's current § 2255 motion challenges the same conviction as in his prior motion to vacate. Because he now raises claims that he could have raised in his first motion, this action is successive within the meaning of § 2255. See United States v. Johnson, 303 F. App'x 241 (5th Cir. Dec. 18, 2008) (affirming dismissal of a motion seeking a reduction of sentence under 18 U.S.C. § 3742 as successive where the movant had already filed a § 2255 motion); see also In re Williams, 806 F.3d 322 (5th Cir. 2015) (analyzing a motion for authorization to file a successive § 2255 motion raising a claim under Johnson v. United States, 135 S. Ct. 2551 (2015), under 28 U.S.C. § 2255(h)(2) and 28 U.S.C. § 2244(b)(2)); United States v. Jones, 796 F.3d 483, 486-87 (5th Cir. 2015) (finding § 2255 motion successive despite intervening reduction of sentence under 18 U.S.C. § 3582(c)).
When a motion to vacate is second or successive, the movant must seek an order from the Fifth Circuit Court of Appeals that authorizes this Court to consider it. See 28 U.S.C. § 2244(b)(3)(A) (made applicable to motions to vacate by § 2255). The Fifth Circuit "may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [§ 2244(b)]." Id. § 2244(b)(3)(C). To present a claim in a second or successive application that was not presented in a prior application, the application must show that it is based on: (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 him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Id. § 2244(b)(2).
Because the Fifth Circuit has not issued an order authorizing the district court to consider a successive § 2255 motion, this Court lacks jurisdiction to consider his new § 2255 motion.
III. RECOMMENDATION
The motion to vacate filed under 28 U.S.C. § 2255 should be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit under Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002), and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).
SIGNED this 4th day of October, 2018.
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE