Coleman v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge William P. Johnson. IT IS ORDERED that Movant Vernon Earl Coleman's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. 2255 (CV Doc. 1, CR Doc. 139) is DISMISSED for lack of jurisdiction, a certificate of appealability is DENIED, and judgment will be entered. (kg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VERNON EARL COLEMAN,
Movant,
vs.
No. CV 16-00860 WJ/SMV
No. CR 10-02063 WJ
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court under rule 4(b) of the Rules Governing Section
2255 Proceedings on Movant Vernon Earl Coleman’s Motion to Vacate, Set Aside or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1, CR Doc. 139). The Motion is a second or
successive motion filed without authorization under 28 U.S.C. § 2255(h) and the Court will
dismiss the Motion for lack of jurisdiction.
On April 5, 2010, Coleman was charged with possession with intent to distribute 100
kilograms and more of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1). (CR Doc.
1). Coleman pled guilty to the charge without a plea agreement. (CR Doc. 75). On August 12,
2011, the Court sentenced him to 164 months of incarceration followed by 4 years of supervised
release (CR Doc. 76). Coleman appealed to the United States Court of Appeals for the Tenth
Circuit and the Judgment was affirmed on June 11, 2012. (CR Doc. 91).
Coleman filed his first motion to vacate, set aside, or correct sentence under 28 U.S.C. §
2255 on December 31, 2012. (CR Doc. 94. See, also, CV 12-01330 WJ/SMV, Doc. 1). His §
2255 motion raised issues of ineffective assistance of counsel and error by the Court in pre-
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sentencing evidentiary rulings. (See CR Doc. 94). The Magistrate Judge entered Proposed
Findings and a Recommended Decision, recommending denial of relief and dismissal of the
motion. (CR Doc. 103). The Court adopted the Magistrate Judge’s Proposed Findings and
Recommended Decision, denying the motion and dismissing with prejudice on June 6, 2013.
(CR Doc. 105, 107). Coleman filed a motion for reconsideration on December 9, 2014, which
was denied by the Court. (CR Doc. 114, 116). Coleman appealed the ruling on the motion for
reconsideration and was denied a certificate of appealability by the Tenth Circuit Court of
Appeals on May 22, 2015. (CR Doc. 122).
Coleman filed his current § 2255 Motion on July 25, 2016. (CV Doc. 1; CR Doc. 139).
In his Motion, Coleman argues he is entitled to a sentence reduction based on a “minor role”
amendment to Section 3B1.2 of the United States Sentencing Guidelines. (CV Doc. 1 at 1-2; CR
Doc. 139 at 1-2). The Motion is a second or successive § 2255 motion filed without authorization
from the United States Court of Appeals for the Tenth Circuit. Without Tenth Circuit
authorization, this Court has no jurisdiction to even consider a second 2255 motion. In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008); Stanko v. Davis, 617 F.3d 1262, 1265 (10th Cir. 2010).
Section 2255 provides that a second or successive § 2255 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 application is filed in the district court, the applicant shall move the
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appropriate court of appeals for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b)(3)(A).
Coleman 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 at 1252.
Under Cline, one of the factors the Court may consider in determining whether to transfer
is whether the claims alleged are likely to have merit. Cline, 531 F.3d at 1251. In order to
proceed on his second § 2255 motion, Coleman would need to present grounds for relief based
on a new rule of constitutional law made retroactively applicable on collateral review. 28 U.S.C.
§ 2255(h). Coleman argues he is entitled to proceed based on the Ninth Circuit’s ruling in
United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016) making the November, 2015
U.S.S.G. Amendment 794 retroactively applicable. However, in Quintero-Leyva, the Ninth
Circuit held that Amendment 794, which amended the commentary to U.S.S.G. § 3B1.2, is
retroactively applicable only on direct appeal and declined to extend retroactive application to
collateral review. 823 F.3d at 521 nt. 1 and 522-24. Neither the United States Supreme Court
nor any federal appellate court has held that Amendment 794 is retroactively applicable on
collateral review under 28 U.S.C. § 2255. Applying Cline, the Court finds Coleman’s allegations
are unlikely to have any merit and it is not in the interests of justice to transfer this matter to the
Court of Appeals.
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Coleman does not meet the requirements to obtain authorization for a second or
successive §2255 motion. 28 U.S.C. § 2255(h)(2). The Court determines that it lacks jurisdiction
to consider Coleman’s second § 2255 motion and it is not in the interests of justice to transfer his
filing to the Tenth Circuit. In re Cline, 531 F.3d 1249, 1252. The Court also determines, sua
sponte under rule 11(a) of the Rules Governing Section 2255 Proceedings, that Coleman has
failed to make a substantial showing that he has been denied a constitutional right under 28
U.S.C. § 2253(c)(2). The Court will deny a certificate of appealability.
IT IS ORDERED that Movant Vernon Earl Coleman’s Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1, CR Doc. 139) is DISMISSED for
lack of jurisdiction, a certificate of appealability is DENIED, and judgment will be entered.
_______________________________
UNITED STATES DISTRICT JUDGE
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