Fajardo-Guevara v. Jackson

Full title: PATRICIA FAJARDO-GUEVARA v. BRIAN A. JACKSON, ET AL.

Court: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Date published: Jul 23, 2019

CIVIL ACTION NO. 18-126-JWD-EWD (M.D. La. Jul. 23, 2019)

Opinion

CIVIL ACTION NO. 18-126-JWD-EWD

07-23-2019

PATRICIA FAJARDO-GUEVARA v. BRIAN A. JACKSON, ET AL.

JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ORDER

Before the Court is a Petition for Writ of Habeas Corpus¹ filed by Petitioner, Patricia Fajardo-Guevara ("Petitioner"), an initiate incarcerated at the Federal Correctional Institution, Aliceville, Alabama.² On or about February 5, 2018, Petitioner filed a 28 U.S.C. § 2255 application herein, styled as a 28 U.S.C. § 2241 application, challenging her conviction for possession with intent to distribute five kilograms or more of cocaine.³

1 The Petition, though styled as a Petition for Writ of Habeas Corpus, is, in substance, a Motion Under 28 U.S.C. § 2255 to Vacate, Set aside, or Correct Sentence.

2 R. Doc. 1.

3 R. Doc. 1; see U.S.A. v. Patricia Fajardo-Guevara, Criminal Action No. 10-151 (M.D. La.).

Petitioner has previously filed a motion to vacate under 28 U.S.C. § 2255 in this Court regarding the same conviction.⁴ The first filed motion to vacate was denied as untimely.⁵ 28 U.S.C. § 2255 requires that a second or successive motion be certified as provided in section 2244. 28 U.S.C. § 2244(b)(3) directs a petitioner filing a "second and successive" motion or petition to obtain authorization from the appropriate Court of Appeals before filing the motion or petition in District Court.

4 See U.S.A. v. Patricia Fajardo-Guevara, Criminal Action No. 10-151 (M.D. La. Nov. 7, 2016).

5 U.S.A. v. Patricia Fajardo-Guevara, Criminal Action No. 10-151 (M.D. La. Nov. 14, 2017).

The instant Motion is another attempt to collaterally attack Petitioner's conviction, and Petitioner's claims are clearly successive. As Petitioner has not yet received permission from the Court of Appeals to file this successive petition in the District Court as required by statute, this Court lacks jurisdiction to consider her claims. Accordingly,

IT IS ORDERED that the Petition⁶ be deemed successive, and that it be DISMISSED for lack of jurisdiction because Petitioner did not obtain permission from the United States Court of Appeals for the Fifth Circuit prior to filing.

6 R. Doc. 1. --------

Signed in Baton Rouge, Louisiana, on July 23, 2019.

/s/ _________

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA