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United States v. Perez-Lopez, 04-00229-KD-N. (2020)

Court: District Court, S.D. Alabama Number: infdco20200205b58 Visitors: 6
Filed: Feb. 03, 2020
Latest Update: Feb. 03, 2020
Summary: ORDER KRISTI K. DuBOSE , Chief District Judge . This action is before the Court on the "Second-in-Time Motion Pursuant to 28 U.S.C. 2255" filed by defendant Oscar Perez-Lopez (doc. 129). Upon consideration and for the reasons set forth herein, the motion is dismissed for lack of jurisdiction. In March 2007, the jury convicted Perez-Lopez of the offenses of possession with intent to distribute more than five kilograms of cocaine (Count 1) and possession with intent to distribute approxima
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ORDER

This action is before the Court on the "Second-in-Time Motion Pursuant to 28 U.S.C. § 2255" filed by defendant Oscar Perez-Lopez (doc. 129). Upon consideration and for the reasons set forth herein, the motion is dismissed for lack of jurisdiction.

In March 2007, the jury convicted Perez-Lopez of the offenses of possession with intent to distribute more than five kilograms of cocaine (Count 1) and possession with intent to distribute approximately 439 grams of cocaine (Count 2) (doc. 59). In May 2007, he was sentenced to 300 months for Count One and 20 years or 240-months, concurrent, for Count Two (doc. 66, Judgment). His conviction and sentence were affirmed on appeal (doc. 85). The United States Supreme Court denied his petition for certiorari on October 21, 2008 (doc. 90).

Relevant to the motion before the Court, Perez-Lopez filed his first motion to vacate pursuant to 28 U.S.C. § 2255 in September 2012 (docs. 91, 93). The motion was denied as time barred (docs. 100, 101). In July 2014, Perez-Lopez filed his second motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 102). The motion was dismissed because Perez-Lopez had not obtained certification from the Court of Appeals for the Eleventh Circuit to file a second or successive motion (docs. 113, 114).

Perez-Lopez has now filed a "Second-in-Time Motion Pursuant to 28 U.S.C. § 2255" (doc. 129). Because Perez-Lopez previously sought relief pursuant to 28 U.S.C. §2255, he must obtain certification from the Eleventh Circuit Court of Appeals before he may file another motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255(h) and 28 U.S.C. § 2244(b)(3) (3)(A) ("Before a second or successive application permitted by this section 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."); Baker v. United States, ___ Fed. Appx. ___, 2020 WL 428928, at *1 (11th Cir. Jan. 28, 2020) ("`Without authorization, the district court lacks jurisdiction to consider a second or successive [motion].'") (quoting United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005)); Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts (a party must obtain authorization from the appropriate court of appeals before presenting a second or successive motion). Since Perez-Lopez has not obtained authorization, his motion is DISMISSED for lack of jurisdiction.

Source:  Leagle

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