Burciaga v. United States of America

Filing 6

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA). IT IS ORDERED that Movant Francisco Burciaga's motion re: Johnson v. U.S., 135 S. Ct. 2551 June 26, 2015 (CV Doc. 1 , CR Doc. 325) is DISMISSED for lack of jurisdiction, and a certificate of appealability is DENIED. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

FRANCISCO BURCIAGA,
Movant,
vs.

Civil No. CV16-00757 MV/GBW
Criminal No. CR 08-01541 MV

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court under rule 4(b) of the Rules Governing Section
2255 Proceedings upon Movant Francisco Burciaga’s motion re: Johnson v. U.S., 135 S. Ct.
2551 June 26, 2015 (CV Doc. 1, CR Doc. 325). The Court construes Burciaga's motion as a
second or successive motion under 28 U.S.C. § 2255, and will dismiss the motion for lack of
jurisdiction.
On June 25, 2008, Burciaga was charged with possession with intent to distribute 1000
grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). (CR Doc. 1).
Following an initial mistrial, Burciaga was found guilty by a jury on May 31, 2013 (CR Doc.
218). The Court entered Judgment on the jury’s verdict on November 26, 2013, and sentenced
him to 240 months of incarceration followed by ten years of supervised release (CR Doc. 265).
Burciaga appealed to the United States Court of Appeals for the Tenth Circuit, and the Judgment
was affirmed on February 4, 2015. (CR Doc. 267, 281).
Burciaga filed a rule 60(b) motion on June 1, 2015, which the Court construed as stating
a request for relief as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
1 

(CR Doc. 282. See, also, CV 15-00460 MV/GBW Doc. 1). After the Court allowed him an
opportunity to file a 2255 motion in proper form, Burciaga then filed his first § 2255 motion to
vacate his sentence on June 29, 2015. (CR Doc. 284). In his motion, supplemented by multiple
additional filings, he argued ten grounds for relief, including ineffective assistance of counsel.
(See CR Doc. 284, 288, 290-295, 296-299, 305). The Magistrate Judge entered Proposed
Findings and Recommended Decision, recommending denial of relief and dismissal of the
motion. (CR Doc. 306). The Court adopted the Magistrate Judge’s Proposed Findings and
Recommended Decision, denying the motion and dismissing with prejudice on February 29,
2016. (CR Doc. 310, 311). Burciaga then filed a rule 59(e) motion asking the Court to amend
the final Order. (CR Doc. 313). The Court denied the rule 59(e) Motion to Amend on March 28,
2016. (CR Doc. 314).
Burciaga has now filed a motion seeking to challenge his sentence under the Supreme
Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015).

The

exclusive remedy for testing the validity of a judgment and sentence is that provided for in 28
U.S.C. § 2255. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The Court will construe
Burciaga’s motion as a second or successive 2255 motion. See, e.g., Peach v. United States, 468
F.3d 1269, 1270 (10th Cir. 2006).
Section 2255 provides that a second or successive motion must be certified in accordance
with § 2244 by a panel of a court of appeals 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 was made retroactive to cases on collateral review by the
Supreme Court. 28 U.S.C. § 2255(h). Section 2244 requires that, before a second or successive

2 

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. 28 U.S.C. § 2244(b)(3)(A).
Burciaga has filed his § 2255 motion without authorization from a court of appeals as
required by § 2244(b)(3)(A). This Court lacks jurisdiction to consider his motion absent the
requisite authorization. When a second or successive § 2255 motion is filed in the district court
without the required authorization from a court of appeals the district court may dismiss or may
transfer the matter to the court of appeals if it determines it is in the interest of justice to do so
under 28 U.S.C. § 1631. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008).
Applying Cline, the Court determines it is not in the interests of justice, declines to
transfer, and will dismiss this matter for lack of jurisdiction. In order to proceed on a second or
successive § 2255 motion, Burciaga would need to present grounds for relief based on either
newly discovered evidence or a new rule of constitutional law. 28 U.S.C. § 2255(h). Burciaga
appears to seek relief based on a new rule of constitutional law as announced in Johnson. In
Johnson, the Supreme Court held that the residual clause of the ACCA is impermissibly vague
and imposing an increased sentence under the residual clause violates the Constitution’s
guarantee of due process. 135 S.Ct. at 2562-63.
Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces
more severe punishment if he has three or more previous convictions for a “violent felony.” 18
U.S.C. § 924 (e)(2)(B). The Act defines “violent felony” to mean:
“any crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious
3 

potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B) (emphasis added). The Johnson Court struck down the italicized
residual clause language of § 924(e)(2)(B)(ii) as unconstitutionally vague. 135 S.Ct. at 2555-63.
Burciaga, however, was not sentenced under the ACCA, nor did he receive an enhanced
sentence for prior violent felony convictions. Instead, he received an enhanced sentence based
on prior felony drug trafficking convictions. (See CR Doc. 361). Therefore, Johnson has no
application to his sentence and even if he were authorized to proceed by the Tenth Circuit, he
could not obtain any relief under Johnson. The Court also determines under rule 11(a) of the
Rules Governing Section 2255 Cases that Burciaga has failed to make a substantial showing that
he has been denied a constitutional right. The Court will deny a certificate of appealability.
IT IS ORDERED that Movant Francisco Burciaga’s motion re: Johnson v. U.S., 135 S.
Ct. 2551 June 26, 2015 (CV Doc. 1, CR Doc. 325) is DISMISSED for lack of jurisdiction, and a
certificate of appealability is DENIED.

_______________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

4