Sanchez Vazquez v. USA

Filing 2

ORDER Denying Petition for Writ of Habeas Corpus 1 Motion to Vacate. Signed by Judge Larry Alan Burns on 7/1/2022. (All non-registered users served via U.S. Mail Service)(smy1)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
JESUS ENRIQUE SANCHEZ
VASQUEZ,
Petitioner,

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Case Nos. 3:21-cv-2155-LAB
3:18-cr-03560-LAB-1

vs.
UNITED STATES OF AMERICA,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
[Dkt. 1]

Respondent.

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In April 2019, this Court sentenced Petitioner Jesus Enrique Sanchez

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Vasquez (“Petitioner”) to 71 months’ imprisonment and assessed costs of

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$100, but no fine, for felony importation of methamphetamine pursuant to 21

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U.S.C. § 960(b). In June 2019, in a related case filed before the Court,

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Petitioner filed a petition for writ of habeas corpus, claiming that although his

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sentence didn’t include a fine, he nevertheless paid a considerable fine (more

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than the maximum allowed by statute), which absolved him from serving the

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remainder of his custodial sentence. Sanchez Vasquez v. United States of

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America, Case No. 19-cv1154-LAB-JLB, Dkt. 1 at 1, 7–8. But the Court denied

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his petition, finding that “Petitioner can’t override the Court’s statutory authority

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to impose a custodial sentence by paying a fine the Court didn’t impose.” Id.,

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Dkt. 4 at 2.
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20cv2155

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Now before the Court is another petition for writ of habeas corpus under

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28 U.S.C. § 2255, filed on December 14, 2021. (Dkt. 1). Because Petitioner’s

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prior petition was adjudicated on the merits, the present habeas petition is

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barred as a second or successive petition. 28 U.S.C. § 2244(b). Indeed,

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Petitioner may not file a second or successive § 2255 petition unless he makes

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a prima facie showing to the appropriate court of appeals that the petition is

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based on:

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(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

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(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.

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28 U.S.C. § 2255(h). Section 2255(h)(2) creates a jurisdictional bar to

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Petitioner’s claims: “If the petitioner does not first obtain [] authorization [from

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the appellate court], the district court lacks jurisdiction to consider the second

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or successive application.” United States v. Lopez, 577 F.3d 1053, 1061 (9th

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Cir. 2009).

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The Court is unable to ascertain from the Petition the basis for

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Petitioner’s challenge to his conviction and sentence. Nonetheless, Petitioner

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has failed to present any evidence that he was granted leave to file a second

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or successive § 2255 petition by the Ninth Circuit, let alone how any of the

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exceptions that allow for a second or successive habeas petition apply here.

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//

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//

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//

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//
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20cv2155

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The Court therefore DISMISSES the second or successive petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2255 without prejudice subject

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to refiling if Petitioner obtains the necessary order from the Ninth Circuit. 1

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IT IS SO ORDERED.
Dated: July 1, 2022

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HON. LARRY ALAN BURNS
United States District Judge

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The Court also notes that there may be a statute of limitations issue as there
is a one-year statute of limitation for a § 2255 petition. See 28 U.S.C. § 2255(f).

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20cv2155