Santana v. United States of America
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that movants 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. 1 Signed by District Judge Jean C. Hamilton on 2/17/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 4:14CV90 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.
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
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).
On January 30, 2013, movant filed yet another motion to vacate before this
Court, pursuant to 28 U.S.C. § 2255. The Court dismissed the motion as successive
on February 1, 2013. See Santana v. United States, 4:13CV200 JCH (E.D. Mo.).
In the instant motion to vacate, movant again 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 prior motion to vacate filed in 2013, movant argues that there was a
change in the law 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 claim being raised was not reasonably
available during [his] initial habeas petition. As further explanation for his argument,
movant asserts that his claim arises from the U.S. Supreme Court’s holding in Alleyne
v. United States, 133 S.Ct. 2151 (2013), and thus should be timely under 28 U.S.C.
In Alleyne, the Supreme Court held that any fact that increases the mandatory
minimum sentence for a crime is an “element” of the criminal offense that must be
proven beyond a reasonable doubt by submission to the jury. The Court resolved
Alleyne on direct, rather than collateral review, and it did not declare that its new rule
applied retroactively on collateral attack.
Alleyne enunciates a rule of constitutional law and “a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328
(1987) (emphasis added). Generally, however, new constitutional rules are not
applied to cases on collateral review, such as this one. Teague v. Lane, 489 U.S. 288,
“Two exceptions to the Teague rule, however, permit the retroactive
application of a new rule whenever: 1) the rule places certain kinds of primary,
private individual conduct beyond the power of the criminal law-making authority to
proscribe or otherwise prohibits imposition of a certain type of punishment for a class
of defendants because of their status or offense; or 2) the rule announces a new
“watershed” rule of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” In re Carl Green, 144 F.3d 384, 386 (6th
Cir.1998), citing Caspari v. Bohlen, 510 U.S. 383, 396 (1994).1
This Court finds that Alleyne does not fall within either of the exceptions to the
non-retroactivity rule, and declines to apply Alleyne in this § 2255 proceeding.
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.
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 17th day of February , 2014.
/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Justices of the Supreme Court have decided that other rules based on
Apprendi do not apply retroactively on collateral review. See Schriro v.
Summerlin, 542 U.S. 348 (2004).
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