Gutierrez v. United States of America

Filing 6

ORDER: Petitioner Jose Guadalupe Gutierrez's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DISMISSED. The Clerk is directed to terminate from pending status the motion to vacate found at Doc. 91 in the underlying criminal case, case number 8:11-cr-313-T-30AAS. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 7/29/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSE GUADALUPE GUTIERREZ,
Petitioner,
v.

Case No: 8:16-cv-1797-T-30AAS
Crim. Case No: 8:11-cr-313-T-30AAS

UNITED STATES OF AMERICA,
Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner Jose Guadalupe Gutierrez’s
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc.
1). By his motion, Gutierrez asserts that he is entitled to relief pursuant to Johnson v.
United States, 135 S. Ct. 2551 (2015), declared retroactive by Welch v. United States, No.
15-6418, 2016 WL 1551144 (Apr. 18, 2016). Because the Eleventh Circuit denied
Gutierrez’s motion for leave to file a successive § 2255, his motion should be dismissed.
Gutierrez’s present § 2255 motion is a second or successive motion. Pursuant to 28
U.S.C. §§ 2255(h) and 2244(b)(3)(A), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, federal prisoners who want to file a second or successive
motion to vacate, set aside, or correct a sentence must move in the appropriate court of
appeals for an order authorizing the district court to consider the second or successive

motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals may
authorize the filing of a second or successive motion only if it determines that the motion
contains claims which rely on either:
(1) newly discovered evidence that, if proven and viewed in the 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
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
On July 22, 2016, the Eleventh Circuit denied Gutierrez’s request to file a successive
motion under § 2255 based on Johnson. (CV Doc. 4). Because Gutierrez has not received
authorization to file a second or successive habeas petition from the Eleventh Circuit, this
Court lacks jurisdiction to consider his motion and it should be dismissed. See United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (“Without authorization [from the
appropriate court of appeals, a] district court lacks jurisdiction to consider a second or
successive petition.”).
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

Petitioner Jose Guadalupe Gutierrez’s Motion to Vacate, Set Aside, or

Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED.
2.

The Clerk is directed to terminate from pending status the motion to vacate

found at Doc. 91 in the underlying criminal case, case number 8:11-cr-313-T-30AAS.

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3.

The Clerk is directed to terminate any pending motions and close this case.

DONE and ORDERED in Tampa, Florida, this 29th day of July, 2016.

Copies furnished to:
Counsel/Parties of Record

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