Facundo v. USA

Filing 4

AMENDED MEMORANDUM OF DECISION AND ORDER dismissing without prejudice 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 06/05/2017. Amending 2 Memorandum of Decision and Order. (Pro se litigant served by US Mail.) (ni)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO: 1:17-cv-00135-MR
[Criminal Case No: 1:07-cr-00019-MR-1]

TOMAS ALEGRIA FACUNDO,
a/k/a Sergio Reynaldo
Hernandez,

)
)
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
__________________________ )

AMENDED
MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Petitioner’s “Retroactive Motion
under 18 [sic] U.S.C. § 2255 Based on Dean v. United States” [Doc. 1]. No
response is necessary from the Government.
STANDARD OF REVIEW
A prisoner in federal custody may attack his conviction or sentence on
the grounds that it is in violation of the Constitution or United States law, was
imposed without jurisdiction, exceeds the maximum penalty, or otherwise is
subject to collateral attack. 28 U.S.C. § 2255. Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District Courts
provides, however, that:

[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the
moving party.
The Court has reviewed Petitioner’s Motion and the record of his underlying
criminal proceedings and enters summary dismissal for the reasons stated
herein.
PROCEDURAL HISTORY
On February 27, 2007, Petitioner was charged with violations of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1). [Criminal Case No. 1:07-cr00019-MR (“CR”), Doc. 1].

On May 4, 2007, Petitioner filed a Plea

Agreement by which he agreed to plead guilty to both charges, and he
stipulated to involvement with a specific amount of actual methamphetamine.
[CR Doc. 14]. On July 9, 2007, Petitioner appeared before the Court and
tendered his guilty pleas which were accepted by the Court. [CR Doc. 18].
On January 30, 2008, the Court sentenced Petitioner to terms of 120 months
of imprisonment for the drug conviction and to a consecutive 60-month term
for the firearm conviction. [CR Doc. 22]. The Court’s Judgment was entered
on February 8, 2008. [Id.]. No direct appeal was filed in Petitioner’s criminal
case.
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On April 12, 2010, Petitioner, acting pro se, filed a Motion to Vacate,
Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, contending
that his guilty plea was not voluntarily and intelligently entered, and that his
attorney was ineffective for failing to file a direct appeal as he reportedly
requested. [Civil Case No. 1:10-cv-00078, Doc. 1]. The Court dismissed the
Motion to Vacate as untimely on June 2, 2010. [Id., Doc. 7].
The Court received the instant § 2255 Motion to Vacate on May 19,
2017. [Doc. 1]. Petitioner contends he is entitled to resentencing in light of
the Supreme Court’s recent decision in Dean v. United States, 137 S. Ct.
1170 (2017).
ANALYSIS
Under the Antiterrorism and Effective Death Penalty Act of 1996, a
prisoner cannot file a “second or successive” motion under § 2255 unless it
is “certified . . . by a panel of the appropriate court of appeals to contain—(1)
newly discovered evidence . . . or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h). Before filing a successive
motion to vacate, a prisoner must obtain authorization from a circuit court.
28 U.S.C. § 2244(b)(3)(A).

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A district court lacks jurisdiction to consider a second or successive §
2255 motion unless the motion has been certified in advance by the
appropriate circuit court of appeals. See § 2255(h). Because Petitioner has
not obtained authorization from the Fourth Circuit to file a second or
successive § 2255 motion, this Court lacks jurisdiction to consider the instant
Motion to Vacate, and it must be dismissed. See United States v. Winestock,
340 F.3d 200, 205 (4th Cir. 2003).
CONCLUSION
For the reasons stated herein, the Court shall dismiss the Motion to
Vacate as an unauthorized, successive § 2255 motion.
The Court further finds that Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims
debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)). Petitioner has failed to demonstrate both that this Court's dispositive
procedural rulings are debatable, and that the Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529
U.S. at 484-85. As a result, the Court declines to issue a certificate of
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appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings
for the United States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence [Doc. 1] is DISMISSED WITHOUT PREJUDICE
as an unauthorized, successive § 2255 motion.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: June 5, 2017

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