Opinion
Case No. 2:05-CR-00083-KJD-GWF Case No. 2:15-CV-00875-KJD
06-11-2015
UNITED STATES OF AMERICA, Plaintiff, v. THOMAS ERIC CONMY, Defendant.
ORDER
Before the Court is Defendant's Motion Pursuant to 28 U.S.C. § 2255(f)(4) (#144). Also before the Court is Defendant's Motion for Discovery (#145).
I. Background
In 2006, a jury convicted Defendant of possession with the intent to distribute a controlled substance, manufacture of methamphetamine, and possession of a firearm by a convicted felon (#63). Defendant received two life sentences for the drug-related charges and 120 months imprisonment for the firearms violation (#80). Defendant appealed (#82), but the Ninth Circuit upheld this Court's judgment (#95).
Defendant filed a § 2255 motion (#100) and an amended § 2255 motion (#104). The Court denied both motions (#114). Defendant appealed the Court's decision (#120). The Ninth Circuit dismissed Defendant's appeal (#127).
Nearly a year later, Defendant filed a complaint in the District of Colombia (#1 in 2:15-cv-00495-KJD-VCF). The District noted that Defendant's claims properly arose under 28 U.S.C. § 2255 and transferred the case to the District of Nevada (#4 in 2:15-cv-00495-KJD-VCF). Defendant asked this Court to construe his complaint as a § 2255 motion (#7 in 2:15-cv-00495-KJD-VCF). The Court did so, but denied the § 2255 motion because it was not properly certified as required by 28 U.S.C. § 2255(h) (#9 in 2:15-cv-00495-KJD-VCF). Defendant then filed the present motions.
II. Analysis
This is Defendant's third § 2255 motion filed with this Court. 28 U.S.C. § 2255 provides that:
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—As this Court previously noted, the Ninth Circuit has not certified a second or successive motion. The Court consequently denies Defendant's third § 2255 Motion. Because Defendant's third § 2255 Motion is denied, Defendant's Motion for Discovery is moot.
(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.
III. Conclusion
Accordingly, it is HEREBY ORDERED that Defendant's Motion Pursuant to 25 U.S.C. § 2255(f)(4) (#144) is DENIED;
IT IS FURTHER ORDERED that Defendant's Motion for Discovery (#145) is DENIED as moot;
IT IS FURTHER ORDERED that Defendant is DENIED a certificate of appealability.
DATED this 11th day of June 2015.
/s/_________
Kent J. Dawson
United States District Judge
See #9 in 2:15-cv-00495-KJD-VCF.