Cesspooch v. USA

Filing 4

MEMORANDUM DECISION AND ORDER Dismissing Plaintiff's Motion to Vacate His Sentence Under 28 USC Section 2255. Signed by Judge Jill N. Parrish on 10/5/17. (dla)

_____________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

ALFRED RAY CESSPOOCH,
Movant,
v.

MEMORANDUM DECISION AND
ORDER DISMISSING THE
PLAINTIFF’S MOTION TO VACATE
HIS SENTENCE UNDER 28 U.S.C. § 2255

UNITED STATES OF AMERICA,
Respondent.

Case No. 2:17-cv-00160-JNP
Judge Jill N. Parrish

Before the court is movant Alfred Cesspooch’s motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. [Docket 1]. The court DISMISSES the motion without
prejudice for lack of jurisdiction.
On January 9, 1997, Mr. Cesspooch was sentenced to 390 months of imprisonment.
[2:93-cr-00281-PGC, Docket 113]. Since then, Mr. Cesspooch has filed at least two previous
motions to amend his sentence pursuant to 28 U.S.C. § 2255. Cesspooch v. United States, No.
2:16-CV-883-DN, 2016 WL 4769350, (D. Utah Sept. 13, 2016); Cesspooch v. United States, No.
2:16-CV-662-JNP, Docket 1.
The present pro se motion was filed on March 6, 2017 and is at least Mr. Cesspooch’s
third Section 2255 motion. Mr. Cesspooch has provided no indication that he has obtained
permission from the Tenth Circuit to file this fifth motion.
Subsection (h) of 28 U.S.C. § 2255 provides that “[a] second or successive motion must
be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain
. . . newly discovered evidence . . . or . . . a new rule of constitutional law.” Section 2244 further

states that “[b]efore a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C. § 2244(3)(A). Therefore,
“[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.” In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
If a movant files a successive 2255 motion without obtaining the appropriate certification
from the Tenth Circuit, the district court has two options. It may dismiss the petition for lack of
jurisdiction or it may 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. Id. at 1252;
Coleman v. United States, 106 F.3d 339, 340–41 (10th Cir. 1997) (per curiam). A district court
may only transfer the motion if it determines that the transfer would be “in the interest of
justice.” 28 U.S.C. § 1631 (“Whenever a civil action is filed in a court . . . and that court finds
that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or appeal could have been brought at
the time it was filed or noticed . . . .”); Cline, 531 F.3d at 1252. “Factors militating for a transfer
include a finding that a new action filed by the litigant would be barred as untimely, and a
finding that the original action was filed in good faith.” Coleman, 106 F.3d at 341 (citation
omitted).
In this case, the court finds that the interests of justice require dismissal rather than a
transfer of Mr. Cesspooch’s third Section 2255 motion. This pro se motion merely replicates the
basic argument made in his other Section 2255 motion filed in this court. See 2:16-cv-00662JNP. Moreover, in this previously filed motion, Mr. Cesspooch is represented by counsel and the

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court recently filed an order dismissing the motion as untimely. Id. at Docket 16. Therefore,
there is no good reason to transfer this redundant motion to the Tenth Circuit rather than dismiss
it for a lack of jurisdiction.
The court, therefore, DISMISSES without prejudice Mr. Cesspooch’s third motion to
vacate and amend his sentence because the court lacks jurisdiction to consider the motion.
[Docket 1].
Dated October 5, 2017.
BY THE COURT:

__________________________________________
JILL N. PARRISH
UNITED STATES DISTRICT COURT JUDGE

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