Salazar-Carvajal v. United States of America

Filing 3

ORDER dismissing without prejudice 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to terminate from pending status the § 2255 motion (CR Dkt. 152) filed in the corresponding criminal case number 8:03-CR-458-T-30. 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). The Clerk shall terminate any pending motions and close this case. A certificate of appealability is denied. Leave to proceed in forma pauperis on appeal is denied. Signed by Judge James S. Moody, Jr on 4/18/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOHN ANDERSON SALAZAR-CARVAJAL,
Petitioner,
v.

CASE NO. 8:13-CV-962-T-30MAP
Crim. Case No. 8:03-CR-458-T-30

UNITED STATES OF AMERICA,
Respondent.
__________________________________/
ORDER
This Cause is before the Court sua sponte as Petitioner’s Motion to Vacate, Correct
or Set Aside Sentence Pursuant to 28 U.S.C § 2255 (CV Dkt. 1) docketed on April 16, 2013.
On February 11, 2013, Petitioner filed a pro se Motion to Alter or Amend Judgment
(“Motion to Alter”) (CR. Dkt. 149). In an order (CR Dkt. 150) entered on March 5, 2013,
this Court informed Petitioner that because he sought to challenge his sentence, the proper
motion to file would be a motion to vacate, correct or set aside sentence pursuant to 28
U.S.C. § 2255 (“§ 2255 Motion”). Pursuant to Castro v. United States, 540 U.S. 375 (2003),
the Court informed Petitioner of its intent to construe his Motion to Alter as a § 2255 Motion
as well as the ramifications that would entail. The Court informed Petitioner that if he did
not wish the Court to construe his Motion to Alter as a § 2255 Motion, Petitioner should
withdraw his Motion to Alter within thirty (30) days. Alternatively, he could inform the
Court he wished to proceed with his Motion to Alter as a § 2255 Motion and also amend it

to include all other claims upon which he challenged his sentence. Petitioner did not
respond, and, on April 15, 2013, after more than thirty days had passed, the Court directed
the Clerk to open a civil case and docket the Motion to Alter as the instant § 2255 Motion.
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). The record and case files
conclusively show Petitioner is not entitled to relief, such that the Government need not
respond, because the instant Motion is successive. Therefore the Motion is dismissed. Even
if the Motion were not dismissed, it would fail on the merits, and, as the Court explained in
its previous Order (CR. Dkt. 150), the case Petitioner relies upon, Bellaizac-Hurtado, 700
F.3d 1245 (11th Cir. 2012), is distinguishable.
BACKGROUND
Petitioner was sentenced on April 16, 2004 by this Court. Petitioner appealed to the
Eleventh Circuit Court of Appeals on April 26, 2004 but voluntarily dismissed his appeal on
May 19, 2004, rendering his judgment final on that date. Petitioner filed a § 2255 motion
(CR Dkt. 112) on March 27, 2006 which the Court denied as time-barred on April 21, 2006.
The Court docketed Petitioner’s instant successive § 2255 Motion (CV Dkt. 1) on April 16,
2013.

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DISCUSSION
In this § 2255 Motion, Petitioner challenges the validity of his plea-based conviction
for possession with intent to distribute five kilograms or more of a mixture or substance
containing a detectable amount of cocaine while aboard a vessel subject to the jurisdiction
of the United States, for which he was sentenced to 168 months imprisonment followed by
60 months of supervised release. Petitioner entirely relies on United States v. BellaizacHurtado to argue the United States had no jurisdiction to arrest him, and, impliedly challenge
the jurisdiction of this Court to sentence him. He also challenges the constitutionality of the
Maritime Drug Law Enforcement Act under which he was convicted. For the reasons
mentioned previously and below, Bellaizac-Hurtado is distinguishable and Petitioner’s §
2255 Motion is successive.
Successive Nature
This is Petitioner’s second § 2255 motion. “[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(h). See 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously
sought collateral relief pursuant to § 2255, and 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. Darby v. Hawk-Sawyer, 405 F.3d
942, 944-45 (11th Cir. 2005).

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Bellaizac-Hurtado and Jurisdiction
Even if this Court were authorized to entertain the merits of the § 2255 Motion, it
would fail. By way of explanation only to Petitioner, the Court points out that his reliance
on Bellaizac-Hurtado is misplaced as it appears from the facts Petitioner asserts as well as
from his written plea agreement (CR Dkt. 31, Plea Agreement) that the United States Coast
Guard (“USCG”) stopped him in international waters whereas Bellaizac-Hurtado concerns
drug-trafficking in territorial waters of a foreign country. In his § 2255 Motion, Petitioner
states, “On November 12, 2003, [Petitioner] . . . [was] traveling in the Carribean in a go-fa[s]t
vessel as a subject to the jurisdiction of the United States of America. After the [USCG]
disabled the boat, [Petitioner] . . . [was] taken into the custody of the United States of
America . . . .” (CV Dkt. 1, 3). In the “Facts” section of Petitioner’s plea agreement, the
same facts are recited with the addition that the go-fast vessel was without nationality, and,
therefore, “subject to the jurisdiction of the United States.” (CR Dkt. 31, 15). Petitioner also
admitted he was “onboard a vessel subject to the jurisdiction of the United States[,]” (CR
Dkt. 15, Indictment, 2), when he pled guilty to Count Two of the Indictment. It is clear that
not only is Bellaizac-Hurtado distinguishable from Petitioner’s case but that Petitioner
cannot disavow this Court’s jurisdiction when he has admitted it multiple times before.
CONCLUSION
Because Petitioner’s instant § 2255 Motion is successive, this case will be dismissed
without prejudice to allow Petitioner the opportunity to seek authorization from the Eleventh
Circuit to file a successive § 2255 motion.
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ACCORDINGLY, it is ORDERED that:
1.

The Motion to Vacate, Set Aside, or Correct an Illegal Sentence (CV Dkt. 1)

is DISMISSED, without prejudice, for lack of jurisdiction. The Clerk is directed to
terminate from pending status the § 2255 motion (CR Dkt. 152) filed in the corresponding
criminal case number 8:03-CR-458-T-30.
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).
3.

The Clerk shall terminate any pending motions and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

Petitioner is not entitled to a Certificate of Appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial
of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. §
2255(c)(2) permits issuing a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” To merit a COA, Petitioner must show that reasonable
jurists would find debatable both (1) the merits of the underlying claims and (2) the
procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Petitioner cannot
make the requisite showing in these circumstances. Finally, Petitioner is not entitled to
appeal in forma pauperis because he is not entitled to a COA.

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Accordingly, a COA is DENIED. Leave to proceed in forma pauperis on appeal is
DENIED. Petitioner must pay the full appellate filing fee without installments unless the
circuit court allows Petitioner to proceed in forma pauperis.
DONE and ORDERED in Tampa, Florida on April 18, 2013.

Copies furnished to:
Counsel/Parties of Record
F:\Docs\2013\13-cv-962.deny 2255.wpd

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