Opinion
Case No. 3:08-cr-041 Also 3:12-cv-397
07-22-2014
UNITED STATES OF AMERICA, Plaintiff, v. EVERARDO RODRIQUEZ-VILCHIS, Defendant.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
TRANSFER ORDER
This case is before the Court on Defendant's filing of a Motion "Requesting the District Court for a Downward Adjustment Enhancement Count Under Guidelines U.S.S.G. § 3B1.1(c) and Count Conviction was Final Section § 841(b)(1(B), (I) (II) and Dismiss Count One of the Pled Guilty Section 846." (Doc. No. 244).
Although the Motion is not labeled as being made U.S.C. § 2255, it seeks relief that can only be granted under that section. That is, Defendant seeks to vacate his judgment on the grounds that the Court committed in the method it calculated his sentence. The District Court had very limited authority to modify a judgment after it is entered; all of the modifications Defendant requests would require the Court to exercise its authority under 28 U.S.C. § 2255.
28 U.S.C. § 2255(h) provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —Congress has provided this limitation so that there will be eventual finality to federal criminal proceedings. Just as a federal defendant cannot be deprived of his statutory right to file under 28 U.S.C. § 2255 by an improper recharacterization of a post-judgment motion, so to a defendant cannot obtain consideration of what it in effect a second § 2255 motion by failing to properly characterize it. See Castro v. United States, 540 U.S. 375, 377 (2003).
(1) newly discovered evidence which, 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 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.
Defendant filed a first § 2255 motion on November 26, 2012 (Doc. No. 209). District Judge Rose entered final judgment dismissing the Motion with prejudice September 9, 2013 (Doc. No. 242). Defendant took no appeal and the time for doing so has long since expired.
A district court lacks jurisdiction to consider a second or successive petition without approval by the circuit court. Burton v. Stewart, 549 U.S. 147 (2007). If a purported motion for relief from judgment attacks the conviction rather than the district court's judgment, it should be transferred to the circuit court for permission to file. United States v. Alford, Case No. 11-4067 (6 Cir. 11/12/2013)(copy at 3:00-cr-065, Doc. No. 156), citing Gonzalez v. Crosby, 545 U.S. 524 (2005), and In re Sims, 111 F.3d 45 (6 Cir. 1997).
Because the instant Motion is a second § 2255 motion within the meaning of 28 U.S.C. § 2255(h), the Clerk is ORDERED to transfer it to the Sixth Circuit Court of Appeals for determination of whether Defendant should be granted permission to proceed. __________
Michael R. Merz