Opinion
Cause No. CR 07-22-BLG-SPW Cause No. CV 16-82-BLG-SPW
06-17-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JOSE ANGEL TORRES-GUARDADO, Defendant/Movant.
ORDER TRANSFERRING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On June 17, 2016, Defendant Torres-Guardado filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He is a federal prisoner proceeding pro se.
Torres-Guardado filed his first § 2255 motion on January 23, 2009. See Mot. § 2255 (Doc. 59). It was denied on June 15, 2009. The Court of Appeals granted a certificate of appealability but affirmed the denial of relief on December 19, 2012. United States v. Torres-Guardado, No. 09-36095 (9th Cir. Dec. 19, 2012) (Doc. 76). A petition for writ of certiorari was denied on June 10, 2013. Clerk Letter (Doc. 81). Thereafter, Torres-Guardado filed other motions collaterally challenging his conviction and sentence (Docs. 82, 87), but all were dismissed (Docs. 83, 86, 88, 91).
The Court of Appeals has not authorized Torres-Guardado to file a second § 2255 motion in this Court, see 28 U.S.C. §§ 2255(h), 2244(c), so this Court lacks jurisdiction, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
The Court of Appeals, however, has jurisdiction to hear an application for leave to file a second or successive motion. 28 U.S.C. § 2244(b)(3). Because Torres-Guardado makes a claim under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), it is in the interests of justice to transfer his motion to the Court of Appeals to cure this Court's want of jurisdiction. 28 U.S.C. § 1631.
A certificate of appealability is denied because this Court clearly lacks jurisdiction and Torres-Guardado's opportunity to file under Johnson is protected by transferring his motion to the Court of Appeals. Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Torres-Guardado's § 2255 motion (Doc. 92) is DISMISSED in this Court and TRANSFERRED to the Court of Appeals as an application for leave to file a second or successive § 2255 motion in this Court.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Torres-Guardado files a Notice of Appeal;
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 16-82-BLG-SPW are terminated and shall close the civil file by entering a judgment of dismissal and transfer to the Court of Appeals.
DATED this 17th day of June, 2016.
/s/_________
Susan P. Watters
United States District Court