Santana v. United States of America

Filing 2

MEMORANDUM AND ORDER-- IT IS HEREBY ORDERED that movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED as successive. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 02/01/13. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRANCISCO SANTANA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:13CV200 JCH

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside or correct
sentence brought pursuant to 28 U.S.C. § 2255. The motion is a “second or successive
motion” within the meaning of 28 U.S.C. §§ 2244 & 2255 but has not been certified
by the United States Court of Appeals for the Eighth Circuit as required by the
AEDPA. As a result, the motion will be denied and dismissed.
Procedural Background
In United States v. Santana 4:90CR30 JCH (E.D. Mo.), a jury found petitioner
guilty of drug conspiracy and a related charge. This Court sentenced petitioner to a
total term of 600 months’ imprisonment. The conviction was affirmed on direct appeal.
See United States v. Ortiz-Martinez, 1 F.3d 662 (8th Cir. 1993).

Petitioner

subsequently filed a motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 asserting several claims. Santana v. United States, 4:97CV1456 JCH

(E.D. Mo.). This Court denied the motion, but granted petitioner a certificate of
appealability. Id. The United States Court of Appeals for the Eighth Circuit affirmed.
Santana v. United States, 1 Fed. Appx. 605 (8th Cir. 2001). Petitioner states that he
subsequently filed a motion in the United States Court of Appeals for the Eighth Circuit
for permission to file a successive habeas petition, which was denied.
In 2010, movant petitioned the Court for a writ of audita querela, arguing that
the United States Supreme Court’s decision in United States v. Gonzalez-Lopez, 548
U.S. 140 (2006), created a change in the law regarding ineffective assistance of counsel
that should be retroactively applied to his conviction. The Court denied movant’s
application for writ of audita querela, finding that a post-judgment change in the law
could not form the basis for relief. See Santana v. United States, 4:10CV939 JCH,
(E.D. Mo.). The Eighth Circuit Court of Appeals affirmed the denial of the writ.
Santana v. United States, No. 10-2417 (8th Cir. 2010).
Discussion
In the instant motion to vacate, movant appears to be seeking to file a successive
motion to vacate pursuant to 28 U.S.C. § 2255(h)(2), which authorizes the filing of a
success claim involving “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” Similar to
his application for audita querela, movant argues that there was a change in the law
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regarding the application of ineffective assistance of counsel claims that should be
retroactively applied to his conviction. As movant is aware, the District Court has no
jurisdiction to review applications for second or successive motions to vacate, pursuant
to 28 U.S.C. § 2244(b)(3)(A).
Under 28 U.S.C. § 2255:
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 . . .
Absent certification from the United States Court of Appeals, this Court lacks
authority under § 2255 to grant movant’s requested relief.
Nonetheless, movant asserts that the “gatekeeping provision of 28 U.S.C. §
2244(b)(3) is not applicable here because the deficiency of counsel claim raised was
not reasonably available during [his] initial habeas petition.” As further explanation for
his argument, movant asserts that his claim was not available prior to the “U.S.
Supreme Court’s holdings in Lafler v. Cooper, Docket No. 10-209 (2012) and Missouri
v. Frye, Docket No. 10-444 (2012). . .”1 Movant, it appears, is attempting to assert that

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The Court assumes that plaintiff is referring to the cases of Lafler v. Cooper,
132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399.
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Lafler v. Cooper and Missouri v. Frye qualified as new rules of constitutional law for
purposes of § 2255(h)(2) and that this somehow provides a way around the “second or
successive” requirement in the statute. He is simply incorrect. In addition, the
substantive basis behind his procedural argument is also faulty.
In both Frye and Lafler, the Supreme Court clarified that the Sixth Amendment
right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
686 (1984), extends to the negotiation and consideration of plea offers that lapse or are
rejected. The Eighth Circuit has recently announced, like many other Circuits before
it, that the Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper did not
announce a new rule of constitutional law. See Williams v. U.S., No. 12-2659, 2013
WL 238877 (8th Cir. January 23, 2013); see also, Buenrostro v. United States, 697
F.3d 1137, 1140 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Hare v.
United States, 688 F.3d 878, 879-90 (7th Cir. 2012); In re Perez, 682 F.3d 930, 932-34
(11th Cir. 2012). As such, even if this Court could authorize a second or successive
motion pursuant to § 2255(h)(2), there does not appear to be a basis for doing so. But
of course, as noted above, that decision must be up to the Eighth Circuit Court of
Appeals.
As the instant motion before the Court is a second or successive motion within
the meaning of § 2244, the motion must be denied.
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Accordingly,
IT IS HEREBY ORDERED that movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 is DENIED as successive.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 1st day of February, 2013.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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