Jimenez v. United States of America

Filing 4

ORDER dismissing without prejudice 1 Motion to vacate, set aside, or correct sentence (2255). The Clerk is directed to send Petitioner the 11th Circuit's application form for leave to file a second or successive § 2255 motion. The Clerk shall terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 11/10/2009. (LN)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION GUILLERMO JIMENEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. __________________________________/ CASE NO. 8:09-CV-2225-T-30MAP CRIM. CASE NO. 8:05-CR-258-T-30MAP ORDER Before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 challenging his 2005 convictions for conspiracy to possess with intent to distribute 5 or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States, and possession with the intent to distribute 5 or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States (CV Dkt. 1). A motion to vacate must be reviewed prior to service on the United States. See Rule 4 of the Rules Governing 2255 Cases. If the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the motion is properly denied without a response from the United States. 28 U.S.C. 2255(b). Petitioner and four co-defendants were indicted June 16, 2005, on one count of possession with intent to distribute 5 kilograms or more of cocaine on board a vessel in violation of 46 U.S.C. App. 1903(a), (g) and 1903(j), and 21 U.S.C. 960(b)(1)(B)(ii) (Count One); and one count of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine on board a vessel in violation of 46 U.S.C. App. 1903(a) and 1903(g), and 21 U.S.C. 960(b)(1)(B)(ii) (Count Two) (CR Dkt. 1). Petitioner entered a guilty plea on September 13, 2005 (CR Dkt. 78). On December 16, 2005, this Court sentenced Petitioner to 168 months imprisonment, and 5 years supervised release (CR Dkt. 94). Petitioner's request for collateral relief pursuant to 28 U.S.C. 2255 was dismissed as time-barred on May 24, 2007 (CR Dkt. 129). See United States v. Jiminez, Case No. 8:07-CV-795-T-30MAP, 2007 U.S. Dist. LEXIS 37982 (M.D. Fla. 2007). "[A] second or successive [ 2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. 2255. See 28 U.S.C. 2244(b)(3)(A). Because Petitioner has previously sought collateral relief pursuant to 2255 and he has not demonstrated that he has obtained permission from the Eleventh Circuit to file a second or successive motion, this Court is without jurisdiction to entertain the instant 2255 motion. This case will, therefore, be dismissed without prejudice to allow Petitioner the opportunity to seek said authorization. ACCORDINGLY, the Court ORDERS that: 1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 (CV Dkt. 1) is DISMISSED without prejudice (CV Dkt. 1). 2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for leave to file a second or successive 2255 motion under 28 U.S.C. 2244(b). 2 3. The Clerk shall terminate any pending motions and close this case. DONE and ORDERED in Tampa, Florida on November 10, 2009. SA:sfc Copy to: Petitioner pro se 3

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