Williams v. USA

Filing 4

FILED IN ERROR - ORDER Denying second or successive motions to vacate, set aside, or correct sentence pursuant to 28 USC 2255. Signed by Judge Roger T. Benitez on 9/27/2021. Modified on 9/28/2021 to reflect EFILED IN ERROR. (jpp).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Case No.: 11cr3529 BEN

Plaintiff,

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v.

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ORDER DENYING SECOND OR
SUCCESSIVE MOTIONS TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE
PURSUANT TO 28 U.S.C. § 2255

ROBERT LEE WILLIAMS,
Defendant.

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[Dkt. Nos. 193, 202, 203 & 204]

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On September 23, 2015, Defendant filed a first motion to vacate, set aside, or

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correct a sentence pursuant to 28 U.S.C. § 2255. The motion was denied on March 6,

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2018. On March 30, 2018, while his appeal was pending, Defendant filed a motion for

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reconsideration (Dkt. 182). After the court of appeals remanded the case for an order on

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the motion to reconsider, this Court denied the motion to reconsider on May 31, 2019.

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Defendant appealed the denial. On May 4, 2021, the appeal was dismissed for failure to

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prosecute.

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With the appeal dismissed, the Court acted on three documents that had been

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received in past months. The documents were ordered filed on the docket on May 18,

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2021. First, Defendant filed a Rule 60(b) motion for relief from the final judgment in his
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§ 2255 proceeding (nunc pro tunc to July 9, 2020) (Dkt. 202). Second, Defendant filed a

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request for judgment under Rule 12(c) as to his Rule 60(b) motion (nunc pro tunc to

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December 24, 2020) (Dkt. 203). Third, like the older motion, Defendant filed another

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Rule 60(b) motion for relief from the § 2255 final judgment (nunc pro tunc to March 10,

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2021) (Dkt. 204). The two Rule 60(b) motions and the Rule 12(c) motion appear to be, in

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substance, second or successive § 2255 motions.

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Title 28 U.S.C. § 2255(h) requires a second or successive motion “be certified as

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provided in section 2244 by a panel of the appropriate court of appeals,” which in this

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case is the Ninth Circuit Court of Appeals. The § 2255(h) gatekeeping provision is a

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statutory enactment of what was the pre-AEDPA abuse-of-the-writ doctrine. AEDPA, as

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in earlier times, generally limits a defendant to one motion under § 2255, and he or she

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“may not bring a ‘second or successive motion’ unless [it] meets the exacting standards

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of 28 U.S.C. § 2255(h).” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir.

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2011). “Before the district court can entertain a second or successive § 2255 motion, the

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appropriate court of appeals must certify the motion.” Tate v. United States, 982 F.3d

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1226, 1227 (9th Cir. 2020). If the petitioner fails to first obtain the certification from the

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circuit court before filing a second or successive motion in the district court, “the district

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court lacks jurisdiction to consider the second or successive application.” United States

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v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009) (emphasis added).

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“Because of the difficulty of meeting this standard, petitioners often attempt to

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characterize their motions in a way that will avoid the strictures of § 2255(h).”

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Washington, 653 F.3d at 1059. “For example . . . petitioners may also characterize their

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pleading as being a motion under Rule 60(b) of the Federal Rules of Civil Procedure.’”

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Id. (citation omitted). As it does not appear that Defendant has sought or received

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authorization from the Ninth Circuit Court of Appeals under § 2244 for this Court to

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consider the new (albeit disguised) motions or new arguments for § 2255 relief, this

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Court lacks jurisdiction. Id. at 1065 (“Accordingly, the district court was without

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jurisdiction to entertain Washington’s successive (albeit disguised) § 2255 motion.”).
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Therefore, Defendant’s motions to pursue a second or successive motion under 28

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U.S.C. § 2255 to vacate, set aside, or correct his sentence (i.e., Dkt. Nos. 193, 202, 203 &

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204) are denied for lack of jurisdiction.

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IT IS SO ORDERED.

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Dated: September 27, 2021

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__________________________________
HON. ROGER T. BENITEZ
United States District Judge

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