Peters v. USA

Filing 12

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING 1 Motion to Vacate/Set Aside/Correct Sentence (2255); FINDING AS MOOT 8 MOTION to Appoint Counsel; FINDING AS MOOT 7 MOTION for Hearing; and FINDING AS MOOT 6 MOTION for Leave to File. See order for specifics. (gr)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
CALVIN DEAN PETERS,
Petitioner,
v.

No. 21-CV-1141-MV-LF
91-CR-395-MV-LF

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Calvin Dean Peters’ Pro Se Motion to Vacate, Set Aside, or
Correct a Federal Sentence Pursuant to 28 U.S.C. § 2255 (the “Motion”). (CV Doc. 1; CR Doc.
355).1 This is Petitioner’s third § 2255 habeas petition arising from the above-captioned criminal
case. (See CR Docs. 295, 349, 355). Because the Court lacks jurisdiction to consider successive §
2255 motions without prior authorization from the Tenth Circuit, the Motion will be dismissed
without prejudice.
BACKGROUND
In 1995, a jury found Petitioner guilty of Aggravated Sexual Abuse on an Indian
Reservation and Aggravated Burglary on an Indian Reservation. (See Cr. Doc. 9/26/1996); see
U.S. v. Peters, 232 F.3d 903 (Table) at *1 (10th Cir. 2000). The Court (Hon. Santiago Campos)
sentenced him to 210 months in federal custody, to be served after the completion of a 92-year
state sentence imposed in 1990. See Peters, 232 F.3d 903 at *1.

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Unless otherwise noted, all docket references are to the civil case.

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In 1999, Petitioner filed his first § 2255 petition. The petition, based primarily on
ineffective assistance of counsel, was denied. (Cr. Doc. 295). Petitioner’s appeal of that ruling was
unsuccessful. Peters, 232 F.3d at *1-2. Petitioner filed a second § 2255 petition in 2008. (Cr. Doc.
349). In the second petition, Petitioner claimed, inter alia, that at trial the Court made erroneous
evidentiary rulings, and that he received ineffective assistance of counsel and was denied due
process. (Cr. Doc. 349 at 6-8). The Court (Hon. William Johnson) dismissed the 2008 petition as
successive and denied a certificate of appealability. (Cr. Docs. 350, 354).
In 2020, the state court dismissed, on double jeopardy grounds, two counts of aggravated
battery and two counts of kidnapping, resulting in a reduction of his state sentence from 92 to 72
months. See State of New Mexico v. Peters, D-1116-CR-9200608, 11/24/2020 CLS:
Judgment/Sentence/Commitment. As amended, the state court judgment includes convictions on
two counts of aggravated burglary, one count of armed robbery, and three counts of criminal sexual
penetration. Id. Petitioner is presently serving his state sentence on those convictions.
Within a year of the amendment of the state court judgment, Petitioner filed the present
Motion. He claims that because his 1995 federal sentence was enhanced based on the 1990 state
convictions, he is entitled to resentencing now that some of those convictions have been vacated.
(Doc. 6 at 8). He also claims that he was denied the right to effective assistance of counsel at
sentencing and that his federal sentence does not satisfy the “like punishment” clause of 18 U.S.C.
§ 13. (Id. at 7-8). In a subsequently filed motion to amend (Doc. 6), petitioner seeks to add a claim
of ineffective assistance of counsel to this habeas action. (See Doc. 6 at 3).
DISCUSSION
By statute, Federal District Courts have jurisdiction over a defendant’s first § 2255 motion.
See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). After that, the

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defendant must obtain authorization from the Tenth Circuit before filing a second or successive §
2255 motion in the District Court. Id. The failure to obtain such authorization is a jurisdictional
defect barring relief. See id. (“A district court does not have jurisdiction to address the merits of
a second or successive § 2255 … claim until [the Tenth Circuit] has granted the required
authorization.”).
Where, as here, Defendant files a successive § 2255 motion without authorization, the
District Court has two options. The Court may transfer the matter to the Tenth Circuit “if it
determines it is in the interests of justice to do so …, or it may dismiss the motion … for lack of
jurisdiction.” Id. at 1252. Factors to consider in evaluating a transfer include:
[W]hether the claims would be time barred if filed anew in the proper forum, whether the
claims alleged are likely to have merit, and whether the claims were filed in good faith or
if, on the other hand, it was clear at the time of filing that the court lacked the requisite
jurisdiction.
Id. at 1251. To be meritorious, a second or successive motion must be based on:
(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, or
(2) a new rule of constitutional law, made retractive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
As to the issue of merit, Petitioner does not rely on a new and previously unavailable rule
of constitutional law, made retroactive to cases on collateral review by the Supreme Court under
28 U.S.C. § 2255(h)(1). Instead, he relies primarily on the vacatur of four of his state convictions
on double jeopardy grounds, implicitly invoking § 2255(h)(2). But in the context of § 2255(h)(2),
the Tenth Circuit recognizes a distinction between claims “based on newly discovered evidence
suggestive of innocence,” Prost v. Anderson, 636 F.3d 578, 583-84 (10th Cir. 2011), also known
as “factual” innocence, on the one hand, and “legal” innocence, i.e., procedural defects
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invalidating a conviction, on the other hand. U.S. v. Maravilla, 566 F. App’x 704, 708 (10th Cir.
2014). Between the two, only claims of factual innocence based on newly discovered evidence
lend merit to a successive habeas petition. Id. at 708; Prost, 636 F.3d at 583-84; accord 28 U.S.C.
§ 2255(h)(2) (newly discovered evidence must prove by a preponderance that “no reasonable
factfinder would have found the movant guilty of the offense”) (emphasis added).
Petitioner’s claim is not based on newly discovered evidence showing his factual
innocence. Rather, it is based on a legal determination by the state court. See, e.g., State v. Swick,
279 P.3d 747, 752 (N.M. 2012) (“A double jeopardy challenge is a constitutional question of
law[.]”). The state court’s vacatur on that ground does not affect the jury’s factual determination
in the state criminal case that Petitioner was guilty of the charged conduct. Petitioner’s claim is
therefore not reasonably meritorious under § 2255(h)(2). Petitioner’s remaining claims—i.e., that
he received ineffective assistance of counsel and that his sentence does not comport with 18
U.S.C. § 13, are not based on newly discovered evidence or a new rule of constitutional law.
Therefore, they lack merit under § 2255(h).
The issue of timeliness weighs neutrally. Petitioner claims that the Motion is timely under
the one-year limitations period in § 2255(f)(4), which runs from “the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise of due
diligence.” For the limited purpose of this Memorandum Opinion and Order, the Court assumes
without deciding that the limitations period was triggered by the state court’s November 24, 2020,
amended judgment—in other words that the fact of the amendment supports Petitioner’s habeas
claim arising from the state court’s amended judgment such that the Motion is timely under §
2255(f)(4) as to that claim. The remaining claims, however, are clearly time barred. The Motion
was filed more than 24 years after the effective date of the Antiterrorism and Effective Death

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penalty Act (“AEDPA”). U.S. v. Miller, 124 F. App’x 634, 635 (10th Cir. 2005) (holding that
prisoners whose convictions became final on or before April 24, 1996 were required to file
motions pursuant to 28 U.S.C. § 2255 on or before April 24, 1997).
The issue of good faith also weighs neutrally. As Petitioner is pro se, and because the legal
issue arising from the amended state court judgment is somewhat nuanced, there is no reason to
conclude that he acted in bad faith in pursuing a successive habeas motion to pursue that claim.
On the other hand, as the Court has twice previously considered and denied habeas relief for
ineffective assistance of counsel and has previously denied Plaintiff’s successive habeas motion,
it appears that Petitioner was aware of the jurisdictional bar when he filed the instant Motion.
For these reasons, Petitioner’s successive 2255 Motion lacks merit and there is not a sound
basis to transfer the Motion to the Tenth Circuit. The Court will dismiss this matter for lack of
jurisdiction. The Court will also deny a certificate of appealability under Habeas Corpus Rule 11,
as this determination is not reasonably debatable. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (certificate of appealability can only issue in a habeas proceeding where petitioner
“demonstrates that reasonable jurists would find the district court’s assessment … debatable or
wrong”).
IT IS ORDERED that Calvin Dean Peters’ Pro Se Motion to Vacate, Set Aside, or Correct
a Federal Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 355) is DISMISSED
without prejudice for lack of jurisdiction, a certificate of appealability is denied, and a separate
judgment will be entered closing the case.
IT IS FURTHER ORDERED that Petitioner’s Pro Se Request for Leave to File an
Amended 28 U.S.C. Section 2255 Motion to Vacate, Set Aside, or Correct a Federal Sentence
(Doc. 6), Petitioner’s Pro Se Motion for Evidentiary Hearing, etc., (Doc. 7), and Petitioner’s Pro

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Se Motion for Appointment of Counsel (Doc. 8) are FOUND AS MOOT.

_________________________________
HONORABLE MARTHA VÁZQUEZ
SENIOR UNITED STATES DISTRICT JUDGE

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