Duran v. United States of America

Filing 3

ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment against Petitioner in the civil case and then to close the case. Signed by Judge Susan C Bucklew on 4/28/2017. (GAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

VASUNARY VARGAS DURAN
v.

Case No: 8:17-cv-958-T-24 AEP
8:15-cr-433 T-24 AEP
Related Case No: 8:17-cv-714 T-24 AEP

UNITED STATES OF AMERICA
_________________________________/
ORDER
This cause comes before the Court on Petitioner Vasunary Vargas Duran’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Civ. Doc. 1; Crim. Doc.
96). Because review of the motion conclusively demonstrates that Petitioner is not entitled to
relief, the Court will not cause notice thereof to be served upon the United States Attorney but
shall proceed to address the matter directly. 28 U.S.C. § 2255(b). As explained below,
Petitioner’s § 2255 motion is DISMISSED as successive.
I.

Background
On June 8, 2016, Petitioner was sentenced to 96 months’ imprisonment followed by five

years’ supervised release after pleading guilty to conspiracy to possess with an intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. § 70503(a), 46 U.S.C. § 70506(a)–(b), and 21 U.S.C.
§ 960(b)(1)(B)(ii). (Crim. Doc. 89). Petitioner did not file a direct appeal.
On March 27, 2017, Petitioner filed a § 2255 motion. (Crim. Doc. 93). The Court denied
his § 2255 motion on March 30, 2017. (Crim. Doc. 94). On April 24, 2017, Petitioner filed the
instant § 2255 motion.

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II.

Discussion
“Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), when a

prisoner previously has filed a § 2255 motion, he must apply for and receive permission from [a
panel of the appropriate court of appeals] before filing a successive § 2255 motion.” United
States v. Neder, 451 F. App’x 842, 845 (11th Cir. 2012) (per curiam) (citing 28 U.S.C. §§
2244(a), (b)(3), 2255(h)). “Absent [the Eleventh Circuit’s] permission, the district court lacks
jurisdiction to address the motion, and it must be dismissed.” Id. (citing United States v. Holt,
417 F.3d 1172, 1175 (11th Cir. 2005)). Petitioner has not shown that he has sought or obtained a
certificate of appealability from the Eleventh Circuit that would allow Petitioner to file a
successive § 2255 motion. Accordingly, Petitioner’s § 2255 motion must also be dismissed as
successive.
III.

Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s § 2255 motion is

DISMISSED as successive. The Clerk is directed to enter judgment against Petitioner in the
civil case and then to close the case.

CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a
district court’s final order in a proceeding under section 2255. 28 U.S.C. § 2253(c)(1). Rather, a
district court must first issue a Certificate of Appealability (“COA”). Id. “A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. at
§ 2253(c)(2). To make such a showing, Petitioner “must demonstrate that reasonable jurists
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would find the district court’s assessment of the constitutional claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to
appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, this 28th day of April, 2017.

Copies to:
Pro se Petitioner
Counsel of Record

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