Opinion
No. 2:02-CR-02202-RHW-1 Civil No. 2:16-CV-240-RHW
07-05-2016
UNITED STATES OF AMERICA, Plaintiff, v. JAVIER LOPEZ-SANTOS, a/k/a Arnulfo Gomez Mendez, Defendant.
ORDER DENYING MOTION TO SET ASIDE, VACATE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Before the Court is Defendant's Motion to Set Aside, Vacate or Correct Sentence under 28 U.S.C. § 2255 pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). ECF No. 69. Defendant challenges his sentence of 188 months for a conviction for Conspiracy to Distribute Over 100 Grams of Heroin. Id.
Defendant previously filed a Motion to Set Aside, Vacate or Correct Sentence under 28 U.S.C. § 2255 on February 8, 2011. ECF No. 60. The Court dismissed the motion with prejudice for lack of timeliness. ECF No. 61. Defendant did not appeal the dismissal.
A habeas petition is successive if it raises claims that were or could have been adjudicated on the merits. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001)). The dismissal of a habeas petition as untimely is considered a disposition on the merits and a future challenge of the same conviction would be a successive § 2255. McNabb v. Yates, 576 F.3d 1028, 1029. Accordingly, the instant motion is a successive §2255.
Before a successive § 2255 petition may be filed in the district court, the petitioner must move the appropriate court of appeals to authorize the district court to consider the application. 28 U.S.C. § 2244(3)(A). The Court cannot find evidence that Defendant has sought, or that the Ninth Circuit has granted, authorization that would allow this Court to consider Defendant's successive § 2255. Thus, this Court lacks jurisdiction to consider Defendant's motion, and the petition must be dismissed.
Accordingly, IT IS HEREBY ORDERED:
1. Defendant's Motion to Set Aside, Vacate or Correct Sentence under 28 U.S.C. § 2255 in light Johnson v. United States, 135 S.Ct. 2551 (2015), ECF No. 69, is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to counsel, Defendant at his prison address, and close the file.
DATED this 5th day of July, 2016.
s/Robert H . Whaley
ROBERT H. WHALEY
Senior United States District Judge