Cifuentes-Cuero v. United States of America

Filing 4

ORDER: The United States of America's Motion to Dismiss for Lack of Jurisdiction (Civ. Doc. # 3) is GRANTED. Jorge Eliecer Cifuentes-Cuero's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence. (Civ. Doc. # [1 ]) is DISMISSED for lack of jurisdiction as successive. Such dismissal is without prejudice to Cifuentes-Cuero's filing a motion in the Eleventh Circuit for permission to file a successive Section 2255 motion to vacate. The Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Virginia M. Hernandez Covington on 9/24/2024. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JORGE ELIECER CIFUENTES-CUERO,
v.

Case No. 8:15-cr-76-VMC-AAS
8:23-cv-2612-VMC-AAS

UNITED STATES OF AMERICA.
______________________________/
ORDER
On

November

6,

2023,

Jorge

Eliecer

Cifuentes-Cuero,

proceeding pro se, filed a 28 U.S.C. § 2255 Motion to Vacate,
Set Aside or Correct Sentence. (Civ. Doc. # 1; Crim. Doc. #
89). The United States of America moved to dismiss the 2255
Motion for lack of jurisdiction on December 18, 2023. (Civ.
Doc. # 3). Cifuentes-Cuero did not respond to the Motion to
Dismiss. For the reasons that follow, the Motion to Dismiss
is granted and the 2255 Motion is dismissed for lack of
jurisdiction as successive.
I.

Background
In August 2018, this Court sentenced Cifuentes-Cuero to

262 months’ imprisonment after he pled guilty to one count of
conspiracy

to

possess

with

intent

to

distribute

five

kilograms or more of cocaine while aboard a vessel subject to
the jurisdiction of the United States. (Crim. Doc. # 56).
1

In

his

following
narcotic

plea

agreement,

facts:

Cifuentes-Cuero

trafficking

leadership

role

Cifuentes-Cuero

since

in

the

2001

has
and

been

admitted
involved

eventually

organization,

the
in

gained

“[growing]

a

and

expand[ing] his narcotic trafficking operations from Colombia
into Ecuador.” (Crim. Doc. # 41 at 19). From 2011 to 2015, he
was a “principle member of his Colombian and Ecuadorean-based
drug trafficking operation.” (Id. at 20). Cifuentes-Cuero
participated in multiple maritime drug-trafficking ventures
by organizing the logistics of the ventures, holding meetings
with others, and supplying information about vessel routes,
rendezvous points, and final destinations. (Id.). He also
funded

the

supplies

necessary

to

conduct

the

ventures,

including purchasing vessels, fuel, engines, and electronic
equipment. (Id. at 21). He provided financial support to, and
supplies

for,

the

crewmembers

of

the

vessels.

(Id.).

Cifuentes-Cuero would, either personally or at his direction,
hire and pay the crew members who transported the narcotics.
(Id.). As described in the plea agreement, Cifuentes-Cuero
was

an

organizer

for

two

smuggling

ventures

that

were

intercepted by law enforcement in 2013 and 2014. (Id. at 2122).
Following his conviction in the instant case, Cifuentes2

Cuero filed an appeal, and the Eleventh Circuit affirmed his
conviction

in

April

2020.

(Crim.

Doc.

#

77).

In

that

unsuccessful appeal, Cifuentes-Cuero argued that the factual
basis for his guilty plea was insufficient and that the
Maritime Drug Law Enforcement Act (“MDLEA”) exceeds Congress’
authority under the Foreign Commerce Clause, as applied to
him. (Id. at 2).
Cifuentes-Cuero then timely filed his first Section 2255
motion,

initiating

civil

case

Cifuentes-Cuero

v.

United

States of America, 8:21-cv-00787-VMC-AAS. (Crim. Doc. # 79;
Civ. 787 Doc. # 1). In the form Motion, Cifuentes-Cuero lists
all

three

of

his

grounds

as

“ineffective

assistance

of

counsel.” (Id. at 4-9). Cifuentes-Cuero then raised three
arguments.

First,

he

claimed

that

his

“abduction”

from

Colombia and subsequent extradition to the United States
breached

certain

international

treaties.

(Id.

at

5-10).

Second, he argued that 21 U.S.C. §§ 960 and 963 do not apply
outside of the United States. (Id. at 10-14). Finally, he
alleged

prosecutorial

misconduct

in

that

the

government

effected his “illegal arrest” and utilized “falsification .
. . [and] unconscionable actions[s]” to secure his presence
in the United States. (Id. at 14-19).

3

The Court denied Cifuentes-Cuero’s Section 2255 motion
on December 1, 2021. (Crim. Doc. # 81; Civ. 787 Doc. # 10).
Although Cifuentes-Cuero filed a motion to reopen and amend
(Civ. 787 Doc. # 12), which the Court denied (Civ. 787 Doc.
# 13), Cifuentes-Cuero did not appeal the denial of his 2255
Motion.
Now, Cifuentes-Cuero has filed the instant 2255 Motion.
(Civ. Doc. # 1; Crim. Doc. # 89). In this Motion, he argues
that

the

Court

erred

in

sentencing

him

to

262

months’

imprisonment instead of his desired below-guidelines sentence
of 120 months’ imprisonment. (Id. at 2). He also raises a
claim of ineffective assistance of trial counsel. He argues
that counsel was ineffective in various ways, including —
among other things — failing to object to the presentence
investigation report, “fail[ing] to fight for the statutory
mandatory minimum” sentence, and “fail[ing] to fight for
sentencing relief under the safety valve statute.” (Id. at 13).
But Cifuentes-Cuero did not first obtain leave from the
Eleventh Circuit to file a second or successive petition. For
this reason, the United States moves to dismiss the 2255
Motion as an unauthorized second or successive motion. (Civ.
Doc. # 3).
4

II.

Discussion
A prisoner who previously filed a Section 2255 motion

must request and receive permission from the Court of Appeals
before filing a second or successive one. See 28 U.S.C. §
2244(b)(3)(A); 28 U.S.C. § 2255(h) (“A second or successive
motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain — (1)
newly discovered evidence that, if proven and viewed in 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.”).

“Absent

such

authorization,

a

district court lacks jurisdiction to consider such a motion.”
Hamilton v. United States, No. 8:06-cr-464-EAK-TGW, 2018 WL
5624182, at *1 (M.D. Fla. July 3, 2018) (citing Farris v.
United States, 333 F.3d 1211, 1216 (11th Cir. 2003)).
Cifuentes-Cuero previously filed an unsuccessful Section
2255 motion (Crim. Doc. # 79; Civ. 787 Doc. # 1), which was
denied on December 1, 2021. (Crim. Doc. # 81; Civ. 787 Doc.
#

10).

Cifuentes-Cuero

has

not

obtained

the

Eleventh

Circuit’s permission to file a second or successive Section
5

2255

motion.

Additionally,

Cifuentes-Cuero

has

not

demonstrated that his claims fall within the small subset of
claims that are not categorized as successive, even though
they are filed second in time. See Stewart v. United States,
646 F.3d 856, 863-65 (11th Cir. 2011) (explaining that the
basis for the second-in-time § 2255 motion — the vacatur of
the predicate state convictions underlying the prisoner’s
career offender status in the federal case — did not exist at
the time of the prisoner’s first § 2255 motion, and thus the
numerically second motion was not “second or successive”
within the meaning of AEDPA); Boyd v. United States, 754 F.3d
1298, 1301-02 (11th Cir. 2014) (determining that a prisoner’s
previously dismissed § 2255 motions did not render a later §
2255 motion “successive” because the prisoner’s claim did not
exist before his initial § 2255 proceeding concluded and the
rulings

on

subsequent

motions

were

not

on

the

merits).

Furthermore, the United States is correct that CifuentesCuero’s “arguments do not address any alleged defect in the
integrity of his first section 2255 proceedings” but, rather,
“he attempts to litigate new but equally meritless grounds of
relief.” (Civ. Doc. # 3 at 4).
Thus,

Cifuentes-Cuero’s

new

motion

constitutes

an

improper, successive motion pursuant to 28 U.S.C. § 2255.
6

Pursuant to Sections 2255(e) and (h), this Court must dismiss
this motion. See Mitchell v. United States, 652 F. App’x 781,
783–84 (11th Cir. 2016) (“The district court did not err in
dismissing Mitchell’s motion to vacate as an unauthorized
successive § 2255 motion because . . . not only did Mitchell’s
ineffective assistance claim exist when he filed his first §
2255 motion in 2010, but he asserted essentially the same
ineffective assistance argument in his first § 2255 motion
that he asserts in his current § 2255 motion.”).
As the Court was able to readily determine that it lacks
jurisdiction, no evidentiary hearing is required. See 28
U.S.C. § 2255(b) (stating that an evidentiary hearing is not
necessary if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief”).
III. Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
Because this Court lacks jurisdiction, it can neither
grant nor deny a certificate of appealability. See Williams
v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (“Without
such authorization, the district court lacked subject matter
jurisdiction

to

consider

the

successive

petition,

and

therefore could not issue a COA with respect to any of these

7

claims.”); Boone v. United States, No. CR 05-00265-WS-N-1,
2016 WL 6803131, at *3 (S.D. Ala. Oct. 14, 2016) (“[A] COA is
unnecessary when, as here, the district court is dismissing
a successive petition for lack of jurisdiction.”), report and
recommendation

adopted,

6780326

Ala.

(S.D.

authorize

No.

Nov.

Cifuentes-Cuero

CR

05-00265-WS-N-1,

14,

2016).

The

Court

to

proceed

on

appeal

2016
will
in

WL
not

forma

pauperis because such an appeal would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3). Cifuentes-Cuero shall be
required to pay the full amount of the appellate filing fee
pursuant to Section 1915(b)(1) and (2).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

The United States of America’s Motion to Dismiss for
Lack of Jurisdiction (Civ. Doc. # 3) is GRANTED.

(2)

Jorge Eliecer Cifuentes-Cuero’s pro se 28 U.S.C. § 2255
Motion to Vacate, Set Aside or Correct Sentence. (Civ.
Doc. # 1; Crim. Doc. # 89) is DISMISSED for lack of
jurisdiction as successive. Such dismissal is without
prejudice to Cifuentes-Cuero’s filing a motion in the
Eleventh Circuit for permission to file a successive
Section 2255 motion to vacate.

8

(3)

The Clerk is directed to enter judgment accordingly and
close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

24th day of September, 2024.

9