Opinion
Case No. 2:03-CV-976TC
December 9, 2003
ORDER
On July 19, 2000, in Case No. 2:99-CR-109TC, Plaintiff Julian Sandoval-Flores (a.k.a. Jose Juan Solarzano-Felix) entered a plea of guilty to two counts of attempted homicide of officers and employees of the United States in violation of 18 U.S.C. § 1114 (3); one count of use of a firearm during and in relation to commission of a felony, in violation of 18 U.S.C. § 924 (c)(1)(A) (iii), and one count of illegal alien in possession of a handgun in violation of 18 U.S.C. § 922(g)(5). After hearing arguments from the government and the defendant, the court sentenced Mr. Sandoval-Flores on February 26, 2001, to 450 months imprisonment, followed by 36 months of supervised release.
In Case No. 2:02-CV-165TC, in its Order dated July 15, 2002, this court erroneously cited these three statutes as appearing in Title 8 (rather than Title 18) of the United States Code. The court here amends that Order to reflect the accurate citations for the statutes, namely: 18 U.S.C. § 1114 (3), 18 U.S.C. § 924 (c)(1)(A) (iii), and 18 U.S.C. § 922 (g)(5).
This matter is now before the court on Mr. Sandoval-Flores' Writ of Audita Querella, or Motion for Relief from Judgment or Order, Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Mr. Sandoval-Flores, proceedingpro se, contends that he was denied effective assistance of counsel for several reasons.
The court recognizes that pro se litigants' pleadings should be construed more liberally than if outside counsel had drafted them.Haines v. Kerner, 404 U.S. 519, 520 (1972); Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nonetheless, Mr. Sandoval-Flores' petition, characterized as a writ of audita querela — brought while Mr. Sandoval-Flores is still serving his sentence, and raising issues of ineffective assistance of counsel — can only be viewed as a motion to vacate under 28 U.S.C. § 2255. See Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946) ("According to its ancient precepts, the writ of audita querela was invented to afford relief in behalf of one against whom execution had been issued or was about to be issued upon a judgment, which it would be contrary to justice to allow to be enforced, because of matters arising subsequent to the rendition thereof.");United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) ("[T]o allow a petitioner to avoid the bar against successive § 2255 petitions by simply styling a petition under a different name would severely erode the procedural restraints imposed under 28 U.S.C. § 2244(b)(3) and 2255.")
This is not the first § 2255 motion Mr. Sandoval-Flores has filed in this matter. Indeed, he has filed two previous motions, one on February 25, 2002 (See Dkt. #1, Case No. 2:02-CV-165TC), and one (a "supplemental" motion) on July 8, 2002 (See Dkt. #7, Case No. 2:02-CV-165TC). The court denied the February 25, 2002 petition on July 3, 2002 (See Dkt. #6, Case No. 2:02-CV-M65TC), holding that Mr. Sandoval-Flores had not been denied effective assistance of counsel, had not identified a protected property interest that was violated (and so was not deprived of due process), and had not produced specific facts supporting his claim that the prosecution failed to disclose favorable evidence. On July 15, 2002 (See Dkt. #8, Case No. 2:02-CV-165TC), the court entered an Order holding that Mr. Sandoval-Flores' July 8, 2002 petition was a second, successive motion, and transferred the case to the Tenth Circuit Court of Appeals.
This is the necessary resolution to Mr. Sandoval-Flores' present motion as well. A second or successive § 2255 motion is not permitted to be filed in the district court absent authorization from the court of appeals. Section 2255 provides in relevant part:
A second or successive motion must be certified as provided in Section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that . . . 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. In turn, 28 U.S.C. § 2244 (b)(3)(A) mandates that "[b]efore a second or successive application . . . 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," See also Coleman v. U.S., 106 F.3d 339, 341 (10th Cir. 1997.)
If a movant does not obtain leave from the appropriate court of appeals before filing his successive § 2255 petition, the district court lacks subject matter jurisdiction over the claim. Torres, 282 F.3d at 1246. The Tenth Circuit has held that "when a second or successive petition for habeas corpus relief under § 2254 or a § 2255 motion is filed in the district court without the required authorization by this court, the district court should transfer the petition or motion to this court in the interest of justice pursuant to [28 U.S.C.] § 1631." Coleman, 106 F.3d at 341.
Accordingly, this court finds that is has no subject matter jurisdiction over Mr. Sandoval-Flores' successive motion to vacate under § 2255. The Clerk of the Court is directed to transfer this motion to the Tenth Circuit Court of Appeals.