BARRIOS-LOPEZ v. UNITED STATES OF AMERICA

Filing 9

ENTRY Dismissing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability. With the prior § 2255 motion having been adjudicated on the merits, and in the absence of authorization for the present filing from the Court of Appeals, this action must now be summarily dismissed for lack of jurisdiction. The petitioner's motion filed on February 4, 2016, though labeled as a motion for relief from judgment, [dkt 3] is denied. Judgment consistent with thi s Entry shall now issue. The clerk shall docket this Entry in the underlying criminal action, No. 1:06-cr-00107-LJM-TAB-01. The court denies a certificate of appealability. Signed by Judge Larry J. McKinney on 3/1/2016. Copy sent to Petitioner via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ISAIAS R. BARRIOS-LOPEZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)

No. 1:15-cv-1666-LJM-DML

Entry Dismissing Motion for Relief Pursuant to
28 U.S.C. § 2255 and Denying Certificate of Appealability
I. The ' 2255 Motion
The petitioner was convicted of drug offenses in No. 1:06-cr-00107-LJM-TAB-01.
A prior motion for relief pursuant to 28 U.S.C. § 2255 was docketed as No. 1:10-cv-00813WTL-TAB and was dismissed with prejudice on June 20, 2013. His most recent motion
for relief pursuant to 28 U.S.C. § 2255 was filed on October 21, 2015 and was forwarded
to the Court of Appeals for its assessment, pursuant to 28 U.S.C. § 2255(h), of the viability
of his challenge to an enhanced sentence. The matter was docketed in the Court of
Appeals as No. 15-3406 and on November 24, 2015 the Court of Appeals denied leave
to file a second or successive motion for relief pursuant to 28 U.S.C. § 2255. The
explanation for this ruling was the following:
Isaias Barrios-Lopez has filed an application pursuant to 28 U.S.C. §
2244(b)(3), seeking authorization to file a successive motion to vacate
under § 2255. Barrios-Lopez, who was sentenced as a career offender,
asks permission to challenge his sentence under Johnson v. United States,
135 S. Ct. 2551 (2015) (holding the residual clause of the Armed Career
Criminal Act is unconstitutionally vague). The application argues that the
district court improperly relied on his prior convictions for serious drug
felonies when making the career offender determination. But Johnson’s rule
applies only to the residual clause of provisions that define violent felonies;
it does not affect predicates for drug offenses.

The appellate mandate transmitting the denial was received by the clerk and docketed in
the underlying criminal action on November 24, 2015. By statute, there were no further
proceedings in the appellate proceedings just described. Instead, the petitioner filed a
Rule 60(a) motion for relief from judgment with respect to the Order of October 21, 2015,
forwarding the most recent 28 U.S.C. § 2255 motion to the Court of Appeals.
Rejection of the § 2255 motion as a candidate to proceed with an authorized
second or successive such motion places the transferred motion back to its status prior
to the transfer.
When there has already been a decision on the merits in a federal habeas action,
to obtain another round of federal collateral review a petitioner requires permission from
the Court of Appeals under 28 U.S.C. ' 2244(b). See Potts v. United States, 210 F.3d
770 (7th Cir. 2000). This statute, ' 2244(b)(3), "creates a 'gatekeeping' mechanism for
the consideration of second or successive [habeas] applications in the district court."
Felker v. Turpin, 518 U.S. 651, 657 (1996). This statute "is an allocation of subject-matter
jurisdiction to the court of appeals." Nunez v. United States, 96 F.3d 990, 991 (7th Cir.
1996). "A district court must dismiss a second or successive petition . . . unless the court
of appeals has given approval for the filing." Id.
With the prior ' 2255 motion having been adjudicated on the merits, and in the
absence of authorization for the present filing from the Court of Appeals, this action must
now be summarily dismissed for lack of jurisdiction.
The petitioner’s motion filed on February 4, 2016, though labeled as a motion for
relief from judgment, [dkt 3] is denied because “[w]hen a court lacks jurisdiction over an
action it has no choice but to announce that fact and dismiss the case.” Stone v.

Stenz, 2008 WL 2184900, *2 (S.D.Ind. 2008)(citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94 (1998)).
Judgment consistent with this Entry shall now issue.
The clerk shall docket this Entry in the underlying criminal action, No. 1:06-cr00107-LJM-TAB-01.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ' 2254 proceedings, and 28 U.S.C. ' 2253(c), the court finds that BarriosLopez has failed to show that reasonable jurists would find it Adebatable whether [this
court] was correct in its procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court therefore denies a certificate of appealability.
IT IS SO ORDERED.

March 1, 2016
Date: __________________

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Isaias Roderico Barrios-Lopez
08337-028
McKEAN FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 8000
BRADFORD, PA 16701