Jimenez 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. 164) filed in the corresponding criminal case number 8:05-CR-258-T-30M AP. 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

GUILLERMO JIMINEZ,
Petitioner,
v.

CASE NO. 8:13-CV-975-T30MAP
Crim. Case No. 8:05-CR-258-T-30MAP

UNITED STATES OF AMERICA,
Respondent.
__________________________________/
ORDER
This Cause is before the Court as Petitioner’s Motion to Dismiss the Indictment (CR
Dkt. 155) which the Court construed in its Order (CR Dkt. 163) of April 16, 2013 as a
Motion to Vacate, Correct, or Set Aside Sentence Pursuant to 28 U.S.C. § 2255 (CV Dkt. 1)
(the “§ 2255 Motion”) due to Petitioner’s failure to respond to the Court’s Order (CR Dkt.
156) issued on March 8, 2013.
On February 12, 2013, Petitioner filed a pro se Motion to Dismiss the Indictment (CR
Dkt. 155) (“Motion to Dismiss”). In its Order (CR Dkt. 156) issued on March 8, 2013, this
Court informed Petitioner that because he sought to challenge his sentence, the proper motion
to file would be a § 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 Dismiss as a § 2255
Motion and that construal’s consequences. The Court informed Petitioner that if he did not
wish the Court to construe his Motion to Dismiss as a § 2255 Motion, Petitioner should

withdraw his Motion to Dismiss within thirty (30) days. Alternatively, he could inform the
Court to proceed with his Motion to Dismiss as a § 2255 Motion, and he should include all
other claims upon which he would challenge his sentence. Petitioner did not respond, and,
on April 16, 2013, after more than thirty days had passed, the Court directed the Clerk to
open a civil case and docket the Motion to Dismiss 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 by this Court on December 19, 2005 after entering a guilty
plea on August 25, 2005. Petitioner did not appeal his sentence, and, thus, his judgment
became final on December 29, 2005. On May 8, 2007, Petitioner filed a § 2255 motion (CR
Dkt. 128). The Court dismissed that motion in its order (CR Dkt. 129) entered on May 24,
2007, since that § 2255 motion was time-barred, and Petitioner had not demonstrated he was
entitled to equitable tolling of the period of limitations. On October 20, 2009, Petitioner filed
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another § 2255 motion (CR Dkt. 146), which the Court also dismissed as successive in its
order (CR Dkt. 149) of November 10, 2009, and Petitioner had not obtained permission from
the Eleventh Circuit to file a second § 2255 motion. The Court docketed Petitioner’s instant
successive § 2255 Motion (CV Dkt. 1), his third, on April 18, 2013.
DISCUSSION
In this § 2255 Motion, Petitioner challenges the validity of his plea-based convictions
for conspiracy to possess with intent to distribute as well as 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 (Count One
and Count Two respectively), for which he was sentenced to 168 concurrent months
imprisonment as to both counts, followed by 60 concurrent months of supervised release as
to both counts. Petitioner entirely relies on United States v. Bellaizac-Hurtado, 700 F.3d
1245 (11th Cir. 2012), to challenge the jurisdiction of this Court to have sentenced him. He
also challenges the constitutionality of the Maritime Drug Law Enforcement Act under which
he was convicted.

Bellaizac-Hurtado is distinguishable from Petitioner’s case, and

Petitioner’s § 2255 Motion is successive.
Successive Nature
As noted above, the instant motion is successive. “[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 he has not demonstrated that he
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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).
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. 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, § 2255 Motion, 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. 31, Plea
Agreement, 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.
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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.
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.
2.

The Clerk is directed to terminate from pending status the § 2255 motion (CR

Dkt. 164) filed in the corresponding criminal case number 8:05-CR-258-T-30MAP. 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.
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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.
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-975.deny 2255.wpd

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