Opinion
18-cr-00354-JST-1
08-08-2023
UNITED STATES OF AMERICA, Plaintiff, v. OSCAR RENE NOGUERA BAEZA, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO VACATE SENENCE UNDER 28 U.S.C. § 2255 AND DENYING THE UNITED STATES' MOTION FOR FINDING OF PARTIAL WAIVER OF ATTORNEY CLIENT PRIVILEGE AS MOOT
RE: ECF NOS. 76, 78
JON S. TIGAR UNITED STATES DISTRICT JUDGE
Before the Court are Defendant Oscar Rene Noguera Baeza's motion to vacate his sentence under 28 U.S.C. § 2255, ECF No. 76, and the United States' motion for a finding of a partial waiver of attorney-client privilege, ECF No. 78.
Baeza previously filed a motion to vacate his sentence under Section 2255, ECF No. 61, which the Court denied in May 2022, ECF No. 70. “A petitioner is generally limited to one motion under § 2255, and may not bring a ‘second or successive motion' unless it meets the exacting standards of 28 U.S.C. § 2255(h).” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). Section 2255(h) provides that “[a] second or successive motion must be certified as provided in section 2244 by a panel of the [the United States Court of Appeals for the Ninth Circuit] to contain” either:
(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; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255. Under Section 2244(b)(3), “[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” Id. § 2244(b)(3)(A). The Ninth Circuit, reading Sections 2255 and 2244 together, has “held that ‘[a] second or successive § 2255 petition may not be considered by the district court unless petitioner obtains a certificate [from the Ninth Circuit] authorizing the district court to do so.'” Washington, 653 F.3d at 1065 (quoting Alaimalo v. United States, 645 F.3d 1042, 1054 (9th Cir. 2011)); accord Jones v. United States, 36 F.4th 974, 980 (9th Cir. 2022).
In other words, before the Court can consider the motion to vacate, Baeza must seek and obtain a certificate from a panel of the Ninth Circuit authorizing him to file the motion because it is based on either “(1) newly discovered evidence that[] . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [Baeza] guilty . . .; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(1)-(2). Baeza “has not sought, and [the Ninth Circuit] has not issued, any such certificate . . . [a]ccordingly, [the Court is] without jurisdiction to entertain” his motion. Washington, 653 F.3d at 1065.
The Court therefore denies Baeza's motion to vacate his sentence without prejudice. See Sanchez-Beltran v. United States, No. 07-CV-02098-JF(LHK), 2015 WL 4483994, at *3 (N.D. Cal. July 22, 2015) (“As the Court concludes that the instant motion constitutes a successive or second § 2255 petition, and Petitioner has not sought[-]much less obtained-a certificate from the Ninth Circuit authorizing such a petition, the Court lacks jurisdiction over Petitioner's motion and must therefore deny it.”). Because the Court denies Baeza's motion, it also denies the United States' motion for a finding that Baeza partially waived the attorney-client privilege in his motion to vacate as moot.
IT IS SO ORDERED.