Card v. USA
Filing
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MEMORANDUM DECISION AND ORDER dismissing 1 Motion to Vacate, Set Aside or Correct Sentence. Signed by Judge Dee Benson on 9/11/15. (jlw)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DANIEL L. CARD,
Petitioner,
MEMORANDUM DECISION AND
ORDER DISMISSING MOTION TO
VACATE, SET ASIDE OR
CORRECT SENTENCE
vs.
UNITED STATES OF AMERICA,
Case No. 2:14-cv-658
Respondent.
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence. (Dkt. No. 1.) Petitioner filed his motion on September 8, 2014 (Id.) and the
government responded on December 22, 2014. (Dkt. No. 4.) Having considered the briefing
and relevant laws, the court adopts the government’s reasoning and finds that the Motion is a
second or successive § 2255 petition over which the court does not have jurisdiction.
Therefore, Petitioner’s motion is DENIED.
BACKGROUND
After a jury trial, this Court sentenced Card to 406 months for armed robbery of two
credit unions (Counts I and III) and using and carrying a firearm during the armed robberies
(Counts II and IV). (Crim. Case No. 2:99-cr-674, Judgment, Dkt. No. 219). The sentence was
ordered to run concurrent with an 87-month sentence in Criminal Case No. 2:97-cr-189. (Id.)
Card appealed his conviction claiming that impeachment evidence was erroneously admitted
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at trial, the evidence was insufficient to support his conviction, and the government withheld
Brady material. The United States Court of Appeals for the Tenth Circuit affirmed Card’s
conviction. United States v. Card, 46 Fed. App’x. 941 (10th Cir. 2002) (unpublished).
On September 13, 2012, Card filed a motion to vacate, correct or set aside sentence
under 28 U.S.C. § 2255. (Civil Case No. 2:12-cv-883, Docs. 1 & 2.) The court denied the
motion as untimely. (Id., Doc. 11 at 2-4.) The court also rejected Card’s argument that the
reason he did not bring his § 2255 motion sooner was because the Supreme Court had not
decided Bond v. United States, 131 S.Ct. 2355 (2011). (Civil Case No. 2:12-cv-883, Doc 11
at 3.) Specifically, “the Supreme Court’s decision in Bond did not establish new ground for
the movant to make a valid claim, as precedent would not have prevented Card from raising
his claim before the Bond decision.” (Id. at 3.) The court also found “there is no extraordinary
circumstance that would support determination that the statute of limitations was tolled.” (Id.
at 3–4.) Card appealed the decision, and the Tenth Circuit dismissed the appeal. United States
v. Card, 534 Fed. App’x 765 (10th Cir. 2013).
On September 8, 2014, Card filed his new Motion to Vacate, Set Aside or Correct
Sentence in the present case. (Dkt. No. 1.) In this motion, Card argues that there are three
grounds for relief: 1. that he is “actually innocent”; 2. that the indictment failed to charge him
with violating the subsections of § 924(c)(1) that he was sentenced under; and 3. that his
counsel was ineffective for failing to dismiss the indictment. (Dkt. No. 1 at 5-6.)
DISCUSSION
A prisoner may not file a second or successive § 2255 habeas claim unless he first
obtains an order from the circuit court authorizing the district court to consider the claim. 28
U.S.C. §§ 2255(h) and 2244(b)(3)(A). In the absence of such authorization, a district court
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lacks jurisdiction to address the merits of the second or successive claim. In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008). Because Defendant has not received an order from the circuit
court authorizing this second or successive claim, this court lacks jurisdiction.
Although “the district court may transfer the matter to [the Tenth Circuit] if it
determines it is in the interest of justice to do so under § 1631,” Id. at 1252, there is no reason
to do so here. There are no facts or legal rights available to Petitioner now that were not in
place when he was convicted of the underlying crime—over ten years before his Motion was
filed. Additionally, Card is no stranger to the procedures and time limits governing § 2255,
including the need for authorization to file a second or successive § 2255 motion. Card filed
numerous § 2255 motions in Criminal Case No. 2:97-CR-189, several of which were dismissed
as second or successive § 2255 motions. Consequently, the court finds that a dismissal, rather
than a transfer, is appropriate in this case. Id. (“[T]he district court . . . may dismiss the motion
or petition for lack of jurisdiction.”).
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion is
DISMISSED FOR LACK OF JURISDICTION.
Dated this 11th day of September, 2015
BY THE COURT:
___________________________________
Judge Dee Benson
District Court Judge
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