Lezine v. United States of America

Filing 12

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning dismissing for lack of jurisdiction the Defendant/Movant's Motion to Amend Judgment and Sentence 11 (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

Nos. CIV 14-0785 JB/KBM
CR 12-1681 JB

ALFONSO LEZINE,
Defendant/Movant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court, under rule 4 of the Rules Governing Section 2255
Proceedings, on the Defendant/Movant’s Motion to Amend Judgment and Sentence, filed September
6, 2016 (CIV Doc. 11; CR Doc. 58)(“Motion”). In his Motion, Defendant/Movant Alfonso Lezine
asks the Court to enter an amended judgment directing that his federal and state sentences will run
concurrently. The Court lacks jurisdiction to grant Lezine the relief that he requests. Accordingly,
the Court will dismiss the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2012, a grand jury indicted Lezine on six counts of interference with commerce
by robbery and felon in possession of a firearm. See Indictment at 1-4, filed July 10, 2012 (CR Doc.
2). Lezine pled guilty to five of the six counts. See Plea Agreement at 2, filed April 16, 2013 (CR
Doc. 36). On August 29, 2013, the Court sentenced Lezine to 180 months of imprisonment. See
Judgment at 3, filed August 29, 2013 (CR Doc. 44)(“Judgment”). The Judgment entered on his
sentence ordered that the terms of imprisonment on the federal counts would run concurrently, but
was silent as to any state court sentence. See Judgment at 3. At the time of his sentencing, Lezine
had state criminal charges pending against him, but the New Mexico state courts had not sentenced

him. On April 4, 2014, he was convicted on the state criminal charges and sentenced to twenty-two
years of incarceration with nine of those years suspended. The state court ordered that his state
sentence run concurrently with his federal sentence. See State of New Mexico v. Lezine, D-202-CR201201610, CLS: Judgment/Habitual, filed April 21, 2014 (text-only-entry).
Lezine filed his first motion under 28 U.S.C. § 2255 on August 19, 2014, raising claims of
ineffective assistance of counsel, based largely on counsel’s alleged failure to request concurrent
federal and state sentences. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody at 5, filed August 29, 2014 (CIV Doc. 1; CR doc. 50). On
February 22, 2015, the Honorable Karen B. Molzen, Chief Magistrate Judge, entered Proposed
Findings and Recommended Disposition, filed February 22, 2015 (CIV Doc. 6; CR Doc.
55)(“PFRD”), concluding that Lezine had failed to establish ineffective assistance of counsel and
recommending denial of his § 2255 motion. The Court adopted the Chief Magistrate Judge’s PFRD
and entered Final Judgment on the § 2255 motion on March 30, 2015. See Memorandum Opinion
and Order Adopting the Magistrate Judge’s Proposed Findings and Recommended Disposition at 1,
filed March 30, 2015 (CIV Doc. 8; CR Doc. 56)(“MOO”); Final Judgment at 1, filed March 30,
2015 (CIV Doc. 9; CR Doc. 57).
Lezine filed his current Motion on September 6, 2016. See Motion at 1. In his Motion,
Lezine requests that the Court amend his sentence and Judgment to order that his federal and state
sentences run concurrently. See Motion at 1-2.
LAW REGARDING SECOND OR SUCCESSIVE § 2255 MOTIONS
The exclusive remedy for testing a judgment and sentence’s validity is that remedy which 28
U.S.C. § 2255 provides. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A motion that
seeks to modify a sentence or judgment is properly construed as a § 2255 motion. Moreover, where

-2-

final judgment has been entered on a prior § 2255 motion, the motion is a second or successive
motion for purposes of § 2255. See, e.g., Peach v. United States, 468 F.3d 1269, 1270 (10th Cir.
2006).
Section 2255 provides that a panel of a Court of Appeals must certify a second or successive
motion in accordance with 28 U.S.C. § 2244 to contain: (1) newly discovered evidence that 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 that was previously
unavailable and which the Supreme Court made retroactive to cases on collateral review. See 28
U.S.C. § 2255(h). Section 2244 requires that, before a second or successive application is filed in
the district court, the applicant shall move the appropriate Court of Appeals for an order authorizing
the district court to consider the application. See 28 U.S.C. § 2244(b)(3)(A).
“A district court does not have jurisdiction to address the merits of a second or successive §
2255 or 28 U.S.C. § 2254 claim until [the Court of Appeals] has granted the required authorization.”
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)(citing United States v. Nelson, 465 F.3d 1145,
1148 (10th Cir. 2006)). When a second or successive § 2255 motion is filed in the district court
without the required authorization from the Court of Appeals, the district court may dismiss or may
transfer the matter to the Court of Appeals if it determines that transfer is “in the interest of justice
pursuant to [28 U.S.C.] § 1631.” In re Cline, 531 F.3d at 1252 (quoting Coleman v. United States,
106 F.3d 339, 341 (10th Cir. 1997)).
LAW REGARDING DESIGNATION OF PLACE OF CONFINEMENT
AND CONCURRENT FEDERAL/STATE SENTENCES
When a federal sentence is imposed before an anticipated state criminal sentence, the federal
district court has discretion to order that the federal sentence will run concurrently with the state
sentence. See Setser v. United States, 556 U.S. 231, 233-45 (2012). The federal Bureau of Prisons
-3-

(“BOP”) is given primary authority over and is responsible for designating the place of a prisoner’s
federal confinement under 18 U.S.C. § 3621(b). See United States v. Miller, 594 F.3d 1240, 1242
(10th Cir. 2010). Section 3621(b) gives the BOP authority to order that a prisoner serve his federal
sentence in any suitable prison facility “whether maintained by the Federal Government or
otherwise.” Accordingly, “when a person subject to a federal sentence is serving a state sentence,
the Bureau may designate the state prison as the place of imprisonment for the federal sentence -effectively making the two sentences concurrent -- or decline to do so -- effectively making them
consecutive.” Setser v. United States, 556 U.S. at 1467-68 (footnote omitted).
BOP Program Statement 5160.05 (Designation of State Institution for Service of Federal
Sentence, Jan. 16, 2003), describes the administrative procedures for the designation of a state
institution for concurrent service of a federal sentence. This Program Statement also provides for the
BOP’s consideration of an inmate’s request for nunc pro tunc designation allowing credit toward a
federal sentence for time spent in service of a state sentence. See BOP Program Statement 5160.05,
¶ 9.b(4), at 4-5. The BOP can exercise this authority, however, only when it is consistent with the
federal sentencing court’s intent or with the criminal justice system’s goals. See BOP Program
Statement 5160.05, ¶ 8, at 4.
Pursuant to § 3621(b) and BOP regulations, the district court may offer a recommendation
whether the state and federal sentences should run concurrently or consecutively. See 18 U.S.C. §
3621(b) (directing the BOP to consider any court statement “recommending a type of penal or
correctional facility as appropriate”); BOP Program Statement 5160.05, ¶ 9.b(2), at 4 (noting that a
sentencing court may “recommend[] a non-federal institution as the place of confinement”). The
same BOP regulations permit a prisoner to seek a retroactive designation of concurrent service. See
BOP Program Statement 5160.05, ¶ 9.b(4), at 4-5. See also Setser v. United States, 556 U.S. at 1468

-4-

n.1 (noting that the BOP sometimes makes its designation nunc pro tunc once the prisoner enters
federal custody). The district court that imposed the sentence may offer a recommendation as to
such a designation, but it has limited jurisdiction to modify the sentence. See United States v. Baker,
769 F.3d 1196, 1198 (10th Cir. 2014).
ANALYSIS
Lezine’s Motion does not identify the statutory basis for his request to amend his sentence
and Judgment. Section 2255 provides the exclusive remedy for testing a judgment and sentence’s
validity. See Bradshaw v. Story, 86 F.3d at 166. Because Lezine seeks to modify his sentence and
Judgment, the Court will construe the Motion as a § 2255 motion. Further, because Final Judgment
has been entered on Lezine’s prior § 2255 motion, the Court concludes that his Motion is a second or
successive § 2255 motion. See Peach v. United States, 468 F.3d at 1270.
Lezine has filed his second § 2255 motion without a Court of Appeals’ authorization as §
2244(b)(3)(A) requires. The Court thus lacks jurisdiction to consider his Motion. See In re Cline,
531 F.3d at 1251. The Court declines, moreover, to transfer Lezine’s Motion to the United States
Court of Appeals for the Tenth Circuit. See In re Cline, 531 F.3d at 1252 (providing that a district
court lacking jurisdiction over a second or successive § 2244 motion may transfer the motion to the
court of appeals when in the interest of justice). As explained below, even if Lezine’s Motion were
not a second or successive § 2255 motion, the Court would still lack jurisdiction to grant Lezine the
relief he seeks. Accordingly, it would be futile and not in justice’s interests to transfer this matter to
the Tenth Circuit. See In re Cline, 531 F.3d at 1252.
At the time of sentencing in the Court, no state sentence had been imposed on Lezine. The
Court did not state that Lezine’s sentence would run concurrently to any anticipated state sentence.
See Judgment at 3. Cf. Setser v. United States, 556 U.S. at 233-45 (holding that the district court has

-5-

discretion to order that the federal sentence will run concurrently with an anticipated state sentence).
In its subsequent MOO, the Court explained the rationale behind this practice:
The Court is generally disinclined to order a federal sentence to be served
concurrently with a yet-to-be imposed state sentence. When the defendant faces state
and federal charges, and the Court is sentencing last, it will often run the sentence
concurrently, because it knows what the state has already done. When, however, the
Court is going first, it usually does not run the sentence concurrently; the state can
decide whether to run its sentence concurrently to the federal one. Sometimes, the
two sentences are related, and it makes sense for the state to run its sentence
concurrently. When the sentences are unrelated or when the state case involves
different violations, it makes sense for the state to run them consecutively, so that the
defendant is incarcerated as long as possible. Nothing in the record suggests that the
Court would have deviated from its usual practice in this case.
MOO at 9. After the Court sentenced Lezine, the state court sentenced him and ordered that his state
sentence run concurrently with his federal sentence. See State of New Mexico v. Lezine, D-202-CR201201610, CLS: Judgment/Habitual, filed April 21, 2014 (text-only-entry). Lezine is serving his
state sentence in a state correctional facility.
It is now for the BOP to decide whether to designate the state correctional facility as the
place of Lezine’s federal incarceration, thus effectively making the sentences concurrent. See Setser
v. United States, 556 U.S. at 1467-68 (footnote omitted). As the Court explained in the MOO, if the
BOP designates Lezine’s state facility for service of his federal sentence, he will serve those two
sentences concurrently. The Court reasoned:
[T]he Court did not specify at sentencing whether Lezine’s federal sentence should
be served concurrently or consecutively with any future state sentence. The state
court thereafter ordered that Lezine’s state sentence be served concurrently with the
federal sentence that the Court imposed. Additionally, it is now the BOP -- not the
Court -- that is vested with discretion to determine whether Lezine’s state facility
will be designated for service of his federal sentence.” See, e.g, Brewer v. United
States, No. CIV 07-5405 CBA, 2008 WL 4934038, at *1 (E.D.N.Y. Nov. 18,
2008)(Amon, J.)(“When the federal sentence is imposed before the state sentence, . .
. the Bureau of Prisons has discretion to designate the state prison a federal facility so
that the two prison terms run concurrently rather than consecutively.” (citing AbdulMalik v. Hawk-Sawyer, 403 F.3d 72, 75-76 (2d Cir. 2005)).

-6-

MOO at 10. The Court may, and has, made a recommendation that the sentences run concurrently.
See MOO at 10. The Court is without authority, however, to amend or modify its original sentence
or Judgment. As a result, even if Lezine’s Motion is not construed as a second or successive § 2255
motion, the Court would still lack jurisdiction to grant the relief Lezine requests in his Motion, i.e.,
an order that his sentences run concurrently. See United States v. Baker, 769 F.3d at 1198. It is thus
not in justice’s interests to transfer this matter to the Tenth Circuit pursuant to § 1631. See In re
Cline, 531 F.3d at 1252.
IT IS ORDERED that the Defendant/Movant’s Motion to Amend Judgment and Sentence,
filed September 6, 2016 (CIV Doc. 11; CR Doc. 58), is dismissed for lack of jurisdiction.

______________________________
UNITED STATES DISTRICT JUDGE
Counsel and parties:
Damon P. Martinez
United States Attorney
Jon K. Stanford
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Plaintiff/Respondent
Alfonzo Lezine
Northeast New Mexico Detention Facility
Clayton, New Mexico
Defendant/Movant pro se

-7-