Cabibi v. USA
Filing
2
MEMORANDUM DECISION AND ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge David Nuffer on 5/4/17 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TROY CABIBI,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DISMISSING
SECTION 2255 MOTION
v.
Case No. 2:16-cv-00231-DN
UNITED STATES OF AMERICA,
Judge David Nuffer
Defendant.
On January 28, 2016, Troy Cabibi filed the instant Motion to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (the “Motion”). 1
In the criminal case to which the Motion applies, Mr. Cabibi pleaded guilty to three charges: (1)
assaulting a federal officer; (2) discharging a firearm during a crime of violence; and (3)
possession of a firearm by a convicted felon. 2 He was sentenced to 240 months in prison 3 and
did not appeal his sentence.
This is Mr. Cabibi’s second Section 2255 motion for the same sentence. 4 Mr. Cabibi
previously filed a Section 2255 motion on January 3, 2013, arguing that his sentence should be
vacated for ineffective assistance of counsel and based on unspecified new evidence. 5 That prior
Section 2255 motion was denied. 6
1
Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255,
Docket no. 1, filed Jan. 28, 2016.
2
United States v. Cabibi, 2:10-cr-01024-DN, Statement in Advance of Plea, ECF No. 77.
3
Id., Minute Entry for Proceedings Held before Judge David Nuffer, ECF No. 81.
4
Id., Notice of Filing Motion to Vacate under 28 U.S.C. 2255, ECF No. 86.
5
Cabibi v. United States, 2:13-cv-000006-DN, Motion to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody Pursuant to 28 U.S.C. § 2255, Filing no. 1, filed Jan. 3, 2013.
6
Id., Memorandum Decision and Order Denying Motion to Vacate, Filing no. 11, entered Apr. 22, 2015.
Under Rule 9 of the Rules Governing Section 2255 Proceedings for the United States
District Courts, a party filing a second 2255 petition must obtain an order from the appropriate
court of appeals—in this case, the Tenth Circuit—authorizing the district court to consider the
motion. 7 A successive Section 2255 motion requires certification from the court of appeals that
the motion is based upon: (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 retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable. 8
Mr. Cabibi has not obtained an order from the Tenth Circuit with the requisite
certification authorizing the district court to consider the Motion. Absent such certification, the
district court lacks subject matter jurisdiction to decide the merits of the motion. 9 When a
movant files a successive 2255 motion without obtaining the appropriate certification from the
Tenth Circuit, the district court has two options. The court may (1) transfer the motion to the
Tenth Circuit pursuant to 28 U.S.C. § 1631 so that the appropriate panel may determine whether
to certify the successive petition or (2) dismiss the petition for lack of jurisdiction. 10 In deciding
whether to transfer the motion pursuant to 28 U.S.C. § 1631, district courts must assess whether
the interests of justice support the transfer. 11 The Tenth Circuit has discouraged district courts
7
Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 9; 28 U.S.C. § 2255(g).
8
U.S. v. Wetzel-Sanders, 805 F.3d 1266, 1268-69 (10th Cir. 2015) (citing 28 U.S.C. § 2255(h)(1) & (2)).
9
Wetzel-Sanders, 805 F.3d at 1269.
10
In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam).
11
Id.; 28 U.S.C. § 1631.
2
from automatically transferring successive Section 2255 motions without engaging in an
interests of justice analysis. 12
Factors considered in deciding whether a transfer is in the interest of justice include (1)
whether the claims would be time barred if filed anew in the proper forum; (2) whether the
claims alleged are likely to have merit; and (3) 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. 13 These factors weigh in favor of dismissing Mr. Cabibi’s Motion for lack of
jurisdiction rather than transferring the Motion to the Tenth Circuit.
Dismissing this Motion without prejudice is not likely to affect whether Mr. Cabibi’s
claims would be time barred if filed anew in the proper forum. 14 Section 2255 imposes a oneyear limitation on motions from the latest of (1) the date on which the judgment becomes final,
(2) the date on which a government-caused impediment to making the motion is removed, (3) the
date on which a newly recognized right asserted by the movant is recognized by the Supreme
Court, or (4) the date on which facts supporting the movant’s claim could have been discovered
through the exercise of due diligence. 15 Judgment was entered against Mr. Cabibi on October 9,
2012, 16 more than three years and three months before the Motion was filed, and he has not
shown a different statute of limitations applies. Mr. Cabibi has relied upon materials and
12
See Cline, 531 F.3d at 1251.
13
Id. (citing Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)).
14
Id.
15
28 U.S.C. § 2255(f).
16
United States v. Cabibi, Amended Judgment, ECF No. 85, entered Oct. 9, 2012.
3
information created and available to him by no later than the time of his prior 2255 Motion,
which was decided on April 22, 2015. 17
If the Motion is not barred by the statute of limitations, it nonetheless likely lacks merit. 18
Mr. Cabibi argues that his counsel was ineffective because counsel’s advice to accept a plea
agreement rather than risk a higher sentence at trial amounted to coercion. 19 Similar arguments
from Mr. Cabibi about ineffective assistance of counsel were alleged and rejected in his prior
Section 2255 motion. 20
The “good faith” factor also weighs in favor of dismissal. As the Tenth Circuit explained
in Cline, “the second or successive authorization requirements are no longer new, and it is by
now well-established that under the plain language of [28 U.S.C. §2255(h)], prisoners must first
obtain circuit-court authorization before filing a second or successive habeas claim in district
court.” 21
Addressing the merits of the Motion would be improper without subject matter
jurisdiction. 22 The interests of justice are better served by dismissal rather than transfer of an
untimely, duplicative, uncertified motion to the Tenth Circuit.
17
Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255,
Docket no. 1, filed Jan. 28, 2016.
18
Cline, 531 F.3d at 1251.
19
Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255,
Docket no. 1, filed Jan. 28, 2016, pp. 3–6.
20
Cabibi v. United States, 2:13-cv-000006-DN, Memorandum Decision and Order Denying Motion to Vacate,
Filing no. 11, entered Apr. 22, 2015.
21
Cline, 531 F.3d at 1252.
22
Wetzel-Sanders, 805 F.3d at 1269.
4
THEREFORE, IT IS HEREBY ORDERED that Mr. Cabibi’s Motion to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody 23 is DISMISSED. The clerk is
directed to close the case.
Signed May 4, 2017.
BY THE COURT
________________________________________
David Nuffer
United States District Judge
23
Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255,
Docket no. 1, filed Jan. 28, 2016.
5
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