Punzalan v. USA

Filing 2

Order denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255) without prejudice. Signed by Chief Judge Frances M. Tydingco-Gatewood on 8/4/2016. (fad, )

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IN THE DISTRICT COURT OF GUAM

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UNITED STATES OF AMERICA,

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CRIMINAL CASE NO. 07-00075
CIVIL CASE NO. 16-00066

Plaintiff,
vs.
NATHANIEL DIAZ PUNZALAN,

ORDER

Defendant.

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On July 7, 2016, the Defendant, proceeding pro se, filed a Motion Under 28 U.S.C. § 2255

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to Vacate, Set Aside, or Correct Sentence (the “Second Section 2255 Motion”). See ECF No. 189.

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Because the Defendant’s Second Section 2255 Motion is a “second or successive” petition that

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requires Section 2255(h) certification before this court may assert jurisdiction, it is hereby DENIED

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without prejudice.

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BACKGROUND

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On August 14, 2008, following a jury trial, the Defendant was found guilty of one count of

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Possession of a Firearm by a Felon. See Verdict Form, ECF No. 116. On May 5, 2009, the court

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sentenced the Defendant to 120 months imprisonment, followed by three years of supervised release.

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See Judgment, ECF No. 138.

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On May 8, 2009, the Defendant appealed his conviction to the Ninth Circuit Court of

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Appeals, which subsequently affirmed his conviction on January 19, 2011. See Notice of Appeal,

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ECF No. 142, and Mandate, ECF No. 158. The Defendant thereafter filed a petition for writ of

USA v. Nathaniel Diaz Punzalan, Criminal Case No. 07-00075 and Civil Case No. 16-00066
Order Denying Second Section 2255 Motion

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certiorari to the United States Supreme Court, which was denied on June 6, 2011. See Punzalan v.

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United States, 131 S. Ct. 2981 (2011).

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On December 20, 2011, the Defendant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set

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Aside, or Correct Sentence (the “First Section 2255 Motion”). See ECF No. 162. Therein, the

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Defendant asserted two grounds to invalidate his sentence: (1) the evidence used at trial was the

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product of unlawful entry and search, and (2) he received ineffective assistance of counsel. Id. at

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5-6. On February 24, 2014, the court denied the Defendant’s First Section 2255 Motion. See Order,

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ECF No. 180.

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On July 7, 2016, the Defendant filed the instant Second Section 2255 Motion. See ECF

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No. 189. Therein, he asserted that he had been sentenced under the “residual clause,” which clause

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has been “deem[ed] unconstitutionally vague.” See Second Section 2255 Motion at ¶12.A, ECF

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No. 189. The court believes the Defendant is relying upon the Supreme Court’s decision in Johnson

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v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), which held that the residual clause of the

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Armed Career Criminal Act (18 U.S.C. § 924(e)) is unconstitutionally void for vagueness.

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ANALYSIS

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A defendant is required to seek and receive certification by a panel of the appropriate court

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of appeals before he may file a second or successive habeas petition in the district court. See

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28 U.S.C. §§ 2255(h), 2244(b)(3)(A). To obtain certification to file a second or successive motion

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from the appellate court, a defendant must demonstrate that the motion was filed based on

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(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 fact finder 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.

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28 U.S.C. § 2255(h); see also Rule 9 Governing § 2255 Cases in the U.S. District Courts (“Before

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presenting a second or successive petition, the moving party must obtain an order from the

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appropriate court of appeals authorizing the district court to consider the petition as required by 28

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U.S.C. § 2255.”).

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This requirement of Section 2255(h) creates a jurisdictional bar to a defendant’s claims in

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this court if he does not first obtain the Ninth Circuit Court of Appeals’ authorization. Ezell v.

USA v. Nathaniel Diaz Punzalan, Criminal Case No. 07-00075 and Civil Case No. 16-00066
Order Denying Second Section 2255 Motion

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United States, 778 F.3d 762, 765 (9th Cir. 2015). A second habeas petition is not considered

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successive if the initial habeas petition was dismissed for a technical or procedural reason, rather

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than on the merits. Slack v. McDaniel, 529 U.S. 473, 485-87 (2000).

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In this case, the Defendant’s First Section 2255 Motion was decided on the merits. See

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Order, ECF No. 180. Accordingly, the instant Second Section 2255 Motion is a second or successive

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petition that requires certification from the Ninth Circuit Court of Appeals, which the Defendant has

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not yet obtained.

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CONCLUSION

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The Defendant’s Second Section 2255 Motion (ECF No. 189) is a “second or successive”

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petition that requires certification from the Ninth Circuit Court of Appeals before this court may

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assert jurisdiction. Accordingly, the court DENIES without prejudice the Second Section 2255

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Motion. The Defendant may re-file his request once he obtains the appropriate certification from

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the Ninth Circuit Court of Appeals authorizing the filing of a second or successive Section 2255

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habeas petition with this court. Additionally, the court DENIES without prejudice the Defendant’s

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Motion to Appoint Counsel (ECF No. 188). The Defendant can renew his request for counsel if the

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appellate court authorizes the filing of a second Section 2255 petition.

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IT IS SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Aug 04, 2016