Filed: Jun. 01, 2015
Latest Update: Jun. 01, 2015
Summary: ORDER LIFTING STAY AND DENYING MOTION TO VACATE SENTENCE ROBERT H. WHALEY , Senior District Judge . Before the Court is Defendant/Petitioner's Motion to Vacate Pursuant to 28 U.S.C. 2255. ECF No. 251. BACKGROUND On December 18, 2009, Petitioner pled guilty to conspiring to traffic in cocaine and methamphetamine. ECF No. 146. Pursuant to a mandatory minimum, the Court sentenced Petitioner to 20 years in prison and 10 years of supervised release on May 18, 2010. ECF No. 181. On September
Summary: ORDER LIFTING STAY AND DENYING MOTION TO VACATE SENTENCE ROBERT H. WHALEY , Senior District Judge . Before the Court is Defendant/Petitioner's Motion to Vacate Pursuant to 28 U.S.C. 2255. ECF No. 251. BACKGROUND On December 18, 2009, Petitioner pled guilty to conspiring to traffic in cocaine and methamphetamine. ECF No. 146. Pursuant to a mandatory minimum, the Court sentenced Petitioner to 20 years in prison and 10 years of supervised release on May 18, 2010. ECF No. 181. On September 1..
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ORDER LIFTING STAY AND DENYING MOTION TO VACATE SENTENCE
ROBERT H. WHALEY, Senior District Judge.
Before the Court is Defendant/Petitioner's Motion to Vacate Pursuant to 28 U.S.C. § 2255. ECF No. 251.
BACKGROUND
On December 18, 2009, Petitioner pled guilty to conspiring to traffic in cocaine and methamphetamine. ECF No. 146. Pursuant to a mandatory minimum, the Court sentenced Petitioner to 20 years in prison and 10 years of supervised release on May 18, 2010. ECF No. 181. On September 13, 2011, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 235. The Court denied Petitioner's first motion to vacate on May 12, 2012. ECF No. 244.
On July 17, 2014, Petitioner filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 251. On August 19, 2014, this Court entered an Order directing the United States Attorney's Office to respond. ECF No. 252. On September 2, 2014, the United States of America responded and then Petitioner filed his timely reply eight days later. ECF Nos. 253 and 254. The main substantive issue in Petitioner's motion is whether the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013) is retroactively applicable. As a case on this precise issue was making its way through the Ninth Circuit at the time, the Court entered an order staying this action until the case was decided. ECF No. 256. The case, Ezell v. United States, 778 F.3d 762 (9th Cir. 2015), has been decided and accordingly, the Court lifts the stay in this case. For the reasons set forth below, the Court also denies Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
DISCUSSION
28 U.S.C. § 2255(h) provides that:
[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(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.
Thus, as the Ninth Circuit recently noted, § 2255(h) creates a jurisdictional bar to the petitioner's claims: `if the petitioner does not first obtain our authorization, the district court lacks jurisdiction to consider the second or successive application.'" Ezell, 778 F.3d at 765 (quoting United States v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009).
Here, Petitioner has already had one motion to vacate under 28 U.S.C. § 2255 denied. ECF No. 244. He has not obtained certification from the Ninth Circuit that his second motion contains new evidence or a new rule of constitutional law has been made retroactively applicable. As such, the Court lacks the authority to consider Petitioner's second motion to vacate his sentence because he has not fulfilled the requirements of 28 U.S.C. § 2255(h).
Even if the Court could consider the merits of Petitioner's motion, the result would be the same. Petitioner argues that Descamps announced a new rule of law. ECF No. 251 at 3. In Ezell, the Ninth Circuit squarely rejected this argument and noted that Descamps was a statutory interpretation case that clarified the application of the modified categorical approach. Ezell, 778 F.3d at 766. The panel expressly held that "Descamps did not announce a new rule, and even if it did, that rule is not constitutional." Id. at 767.
Accordingly, IT IS HEREBY ORDERED:
1. The Court lifts the stay in this matter.
2. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 251, is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to the United States Attorneys' Office and Defendant/Petitioner at his prison address, and close the file.
