Opinion
No. 2:06-cr-0236 TLN KJN P
11-16-2015
UNITED STATES OF AMERICA, Respondent, v. FRANCISCO EMILIO VEGA, Movant.
(No. 2:15-cv-0232 TLN KJN P)
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, on January 26, 2015. On March 6, 2015, respondent filed a motion to dismiss for lack of jurisdiction and to stay briefing on the merits. On March 18, 2015, movant filed an opposition to the motion. As set forth below, the court finds that the motion should be granted.
The court's records reveal that movant previously filed a motion to vacate, set aside or correct his sentence. The first motion was filed on March 31, 2011, stayed for a period of time, then denied on the merits on July 8, 2013.
Before movant can proceed with the instant motion, he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. § 2255; see also 28 U.S.C. § 2244(b)(3). Therefore, this petition should be dismissed without prejudice to its re-filing upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
Movant argues that his prior § 2255 motion does not constitute a first § 2255 motion for second or successive purposes because the court did not provide him with a warning, clearly explaining the restrictions imposed on second or successive § 2255 motions, citing United States v. Miller, 197 F.3d 644 (3rd Cir. 1997). Movant's argument is unavailing because Miller is distinguishable on its facts. In Miller, the prisoner filed two post-conviction motions, one requesting dismissal of the indictment, alleging prosecutorial misconduct, and the second sought a new trial based on the same misconduct. Id. The district court combined the motions and construed them as one § 2255 motion. The Third Circuit noted that such construction was proper prior to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), but that following AEDPA, such construction should not occur unless the prisoner is first warned of the consequences of such recharacterization. Miller, 197 F.3d at 649-50. As the Supreme Court subsequently explained, "[t]he limitation applies when a court recharacterizes a pro se litigant's motion as a first § 2255 motion." Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786, 792 (2003).
No such recharacterization occurred here. On March 31, 2011, movant filed a § 2255 motion on the court's form which is entitled, "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." (ECF No. 91.) Appended to the form § 2255 motion was movant's own typewritten memorandum of law and points and authorities "in support of his motion to vacate, set-aside, or correct sentence pursuant to Title 28, United States, Code, § 2255." (ECF No. 91 at 14.) Thus, movant himself characterized his motion as brought under § 2255, and the court accepted movant's own characterization. Thus, the court did not deprive movant of his opportunity to exercise rights under § 2255.
Movant's second motion, filed January 27, 2015, was typed by movant, and is entitled "Memorandum of Law, Points and Authorities in Support of his Motion filed Pursuant to 28 U.S.C. § 2255." (ECF No. 139.)
Thus, unlike in Miller, the court did not recharacterize filings by movant; rather, movant chose to file § 2255 motions. Because no recharacterization occurred, the limitation on the district court's ability to recharacterize the motion does not apply here. Castro, 540 U.S. at 383. However, as set forth above, the dismissal of this second motion is without prejudice to movant applying for authorization to file a second motion from the Ninth Circuit. A three-judge panel of the court of appeals reviews the application and determines whether movant has made a prima facie showing that the application meets the statutory exceptions set forth in 28 U.S.C. § 2255(h).
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 144) be granted;
2. Movant's January 26, 2015 motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 139) be denied without prejudice; and
3. The Clerk of the Court be directed to close the companion civil case No. 2:15-cv-0232 TLN KJN P.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If movant files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: November 16, 2015 /vega2136.mtd.suc
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE