Briones v. USA

Filing 8

ORDER, the Clerk must file the lodged Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and lodged Application to Proceed without Prepayment of Filing Fees; Movant's Application to Procee d without Prepayment of Filing Fees 3 is denied as moot; Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 2 is denied and the civil action opened in connection with this Mot ion is dismissed without prejudice; the Clerk must enter judgment accordingly; Movant's Motion to Stay 1 is denied; the Clerk must send a copy of this Order to the Ninth Circuit Court of Appeals and to Plaintiff; the Clerk must indicate that t he Order relates to Ninth Circuit case 13-71056; in the event Movant files an appeal, the Court declines to issue a Certificate of Appealability because reasonable jurists would not find the Court's procedural ruling debatable, re: CR 96-464-PHX-RCB. Signed by Senior Judge Robert C Broomfield on 9/25/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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No. CV 13-1240-PHX-RCB (BSB)

Plaintiff,
vs.

CR 96-464-PHX-RCB
ORDER

Riley Briones, Jr.,

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Defendant/Movant.

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On June 20, 2013, Movant Riley Briones, Jr., who is represented by attorney

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Sigmund G. Popko, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

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Correct Sentence by a Person in Federal Custody (lodged at Doc. 2), a Motion to Stay

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§ 2255 Proceedings Pending the Outcome of a Request for Authorization by the Ninth

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Circuit1 (Doc. 1), and an Application to Proceed Without Prepayment of Fees (lodged at

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Doc. 3).

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On June 25, 2013, Movant filed a Notice informing the Court that the Ninth

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Circuit Court of Appeals had appointed counsel for Movant regarding his application for

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authorization to file a second or successive § 2255 motion that is pending in the Ninth

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Circuit and ordered a response from Respondent.

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This document was inaccurately docketed as a Motion for Leave to File and the
§ 2255 Motion and Application to Proceed were lodged, rather than filed. The Court will
direct the Clerk of Court to file the § 2255 Motion and Application to Proceed.

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I.

Application to Proceed Without Prepayment of Fees

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Although Movant has filed an Application to Proceed without Prepayment of Fees,

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there is no filing fee or court costs associated with a § 2255 proceeding. See Rule 3,

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Rules Governing § 2255 Proceedings, Advisory Comm. Notes (1976) (“There is no filing

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fee required of a movant under these rules.”). The Court will therefore deny as moot

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Movant’s Application to Proceed.

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II.

Procedural Background

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Movant was convicted by a jury of First-Degree Felony Murder, two counts of

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Conspiracy to Commit Arson, four counts of Arson, Assault with a Dangerous Weapon,

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Tampering with a Witness, and Possession of an Unregistered Destructive Device. The

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Court sentenced Movant to life imprisonment without the possibility of parole.

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On November 29, 1999, Movant filed a pro se § 2255 Motion (Doc. 1 in CV 99-

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2094 and Doc. 210 in CR 96-464). In a March 31, 2003 Order (Doc. 281 in CR 96-464),

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the Court denied Movant’s § 2255 Motion. The Clerk of Court entered Judgment on the

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same date (Doc. 282 in CR 96-464).

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Movant’s current § 2255 Motion, therefore, is his second § 2255 Motion.
III.

Discussion

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Under 28 U.S.C. §§ 2255 and 2244, a movant may not file a second or successive

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§ 2255 motion in the district court unless the movant has obtained a certification from the

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Ninth Circuit Court of Appeals authorizing the district court to consider the second or

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successive § 2255 motion. Although Movant has sought a certification from the Ninth

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Circuit, see Briones v. United States, 13-71056 (9th Cir. March 25, 2013), he has not yet

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obtained a certification.

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“From the district court’s perspective, [the provisions requiring appellate court

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authorization] are ‘an allocation of subject-matter jurisdiction to the court of appeals.’”

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United States v. Barrett, 178 F.3d 34, 41 (1st Cir. 1999) (quoting Nunez v. United States,

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96 F.3d 990, 991 (7th Cir. 1996)).

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application must start in the court of appeals, and any effort to begin in the district court

“Anyone who files a ‘second or successive’

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must be dismissed for want of jurisdiction or transferred to the court of appeals.” Benton

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v. Washington, 106 F.3d 162, 165 (7th Cir. 1996) (internal citation omitted). See also

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Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (“When a second or successive

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habeas petition is erroneously filed in a district court without the permission of a court of

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appeals, the district court’s only option is to dismiss the petition or transfer it to the court

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of appeals pursuant to 28 U.S.C. § 1631.”); Pratt v. United States, 129 F.3d 54, 57 (1st

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Cir. 1997) (“[A] district court, faced with an unapproved second or successive habeas

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petition, must either dismiss it or transfer it to the appropriate court of appeals.” (internal

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citation omitted)); Nunez, 96 F.3d at 991 (“A district court must dismiss a second or

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successive petition, without awaiting any response from the government, unless the court

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of appeals has given approval for its filing.”).

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Because Movant has failed to obtain permission from the Ninth Circuit before

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filing this second § 2255 motion, the Court lacks subject matter jurisdiction over the

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second § 2255 motion and must dismiss it. See United States v. Allen, 157 F.3d 661, 664

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(9th Cir. 1998) (concluding that the district court lacked jurisdiction to consider a

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successive § 2255 motion when movant had failed to request certification from the

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appellate court prior to filing successive § 2255 motion in the district court); United

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States v. Alvarez-Ramirez, 128 F. Supp. 2d 1265, 1267 (C.D. Cal. 2001) (dismissing a

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second § 2255 motion for lack of subject matter jurisdiction because movant failed to

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obtain Ninth Circuit certification). The Court will not direct the Clerk of Court to refer

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the second § 2255 motion to the Ninth Circuit because the second § 2255 motion is

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already attached as an exhibit to the application for authorization to file that Movant filed

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with the Ninth Circuit. See Doc. 1-2 in 13-71056. The Court will, however, direct the

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Clerk of Court to send a copy of this Order to the Ninth Circuit Court of Appeals.

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To the extent Movant requests that the Court stay this case pending the Ninth

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Circuit’s ruling on his application for authorization to file, the Court declines to do so.

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The Court cannot stay a case over which it does not possess jurisdiction. The Court

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rejects Movant’s contention that the “stay and abeyance” procedure for a state prisoner’s
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“mixed” habeas corpus petition, see Rhines v. Weber 544 U.S. 269 (2005), is analogous.

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More analogous is Iasu v. Smith, 511 F.3d 881, 886-88 (9th Cir. 2007), which concluded

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that a district court lacked habeas jurisdiction over an order of removal because under 8

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U.S.C. § 1252(a)(5), a petition for review filed in the appropriate court of appeals was the

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exclusive means of obtaining review of an order of removal.

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To the extent Movant is concerned about the timeliness of his § 2255 motion, the

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Court can address that issue if the Ninth Circuit grants Movant authorization to file. Or,

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the Ninth Circuit can obviate the issue by directing the Clerk of Court to consider the

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petition deemed filed on the date it was delivered to prison officials for filing in the

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appellate court.

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IT IS ORDERED:

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(1)

The Clerk of Court must file the lodged Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and lodged

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Application to Proceed without Prepayment of Filing Fees.

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(2)

Movant’s June 20, 2013 Application to Proceed without Prepayment of

Filing Fees is denied as moot.

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(3)

Movant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody (lodged at Doc. 323 in CR 96-464) is denied

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and the civil action opened in connection with this Motion (CV 13-1240-PHX-RCB

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(BSB)) is dismissed without prejudice.

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accordingly.

The Clerk of Court must enter judgment

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(4)

Movant’s Motion to Stay (Doc. 1 in CV 13-1240) is denied.

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(5)

The Clerk of Court must send a copy of this Order to the Ninth Circuit

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Court of Appeals and to Plaintiff. The Clerk of Court must indicate that the Order

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relates to Ninth Circuit case 13-71056.

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(6)

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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DATED this 25th day of September, 2013.

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