De Lopez v. United States of America

Filing 11

ORDER DENYING 1 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255. Signed by Judge Jeremy Fogel on 9/16/2009. (jflc2, COURT STAFF) (Filed on 9/16/2009)

1 **E-Filed 9/16/2009** 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Maria Garcia de Lopez ("Lopez") moves to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. The Court has read the moving and responding papers and has considered the applicable law. For the reasons discussed below, the motion will be denied. I. BACKGROUND On April 26, 2001, a judgment and commitment was entered with respect to Defendant Maria Garcia de Lopez, reflecting a sentence of 121 months of imprisonment for possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841(a)(1), as charged in a superseding indictment in this district; and a concurrent sentence of 121 months of imprisonment for conspiracy to distribute methamphetamine and marijuana in violation of 21 U.S.C. § 846, as
C ase No. CR 00-20177 JF, C 06-05479 JF O R D E R DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE ( JF E X 2 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

UNITED STATES OF AMERICA, Plaintiff v. MARIA GARCIA DE LOPEZ, Defendant

Case Number CR 00-20177 JF C 06-05479 JF ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

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charged in a superseding indictment originating in Montana of which Lopez elected to dispose in this district. On June 21, 2004, Lopez filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("First Section 2255 Motion"). In that motion, she claimed that her counsel was ineffective in failing to advise her of her right to appeal, the consequences of her plea agreement, and the possibility of deportation. On February 17, 2005, this Court issued an Order denying Lopez's First Section 2255 Motion as time-barred. The Court denied Lopez's application for a certificate of appealability by order filed May 10, 2005. On November 22, 2005, the Ninth Circuit also denied Lopez's request for a certificate of appealability. On August 23, 2005, Lopez filed a second motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("Second Section 2255 Motion"). On December 5, 2005, she filed an application in the Ninth Circuit for leave to file a second or successive petition, which was denied. On September 6, 2006, Lopez filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("Third Section 2255 Motion"). On October 18, 2006, this Court issued an Order to Show Cause directing the United States to respond. On December 22, 2006, the Court granted the United States' motion for extension of time. The United States filed its opposition brief on January 12, 2007.

II. DISCUSSION Under 28 U.S.C. § 2244, "[n]o circuit or district court judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255." 28 U.S.C. § 2244. Section 2255 requires 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 . . . or (2) a new rule of 2
C ase No. CR 00-20177 JF, C 06-05479 JF O R D E R DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE ( JF E X 2 )

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constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously made unavailable." Section 2244(3)(B) requires that "[a] motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals." The Ninth Circuit has held that a district court has no jurisdiction to consider a second or successive § 2255 petition until the court of appeals has authorized its filing. See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998); see also Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) ("An individual seeking to file a `second or successive' application must move in the appropriate court of appeals for an order directing the district court to consider the application."). Because Lopez has not obtained the required certification from the Ninth Circuit, this Court lacks jurisdiction to consider the instant motion.

III. ORDER The motion to vacate, set aside or correct sentence is DENIED. IT IS SO ORDERED.

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C ase No. CR 00-20177 JF, C 06-05479 JF O R D E R DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE ( JF E X 2 )

DATED: 9/16/2009 _______________________ JEREMY FOGEL United States District Judge

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This Order has been served upon the following persons:

Maria Garcia de Lopez 99624-011 Federal Correctional Institution 5701 8th Street Camp Parks Dublin, CA 94568 Miguel Hernandez [e-mail] Shawna Yen [e-mail]

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C ase No. CR 00-20177 JF, C 06-05479 JF O R D E R DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE ( JF E X 2 )