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Sanchez-Garcia v. United States

United States District Court, N.D. Texas, Dallas Division

November 21, 2017

NICOLAS SANCHEZ-GARCIA, ID # 32518-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.

         By order of reference dated November 20, 2017, before the Court is the defendant's Motion to Revoke the Illegal Sentence, received on November 15, 2017. (See doc. 91.) Based on the relevant findings and applicable law, the motion should be construed as a successive habeas motion under 28 U.S.C. § 2255, opened as a new case, and TRANSFERRED to the United States Court of Appeals for the Fifth Circuit.

         I. BACKGROUND

         Nicolas Sanchez-Garcia (“Movant”) was found guilty of illegal reentry. (See doc. 40.) He was sentenced to 100 months in prison with two years of supervised release. (See doc. 45.) His sentence was vacated, see United States v. Sanchez-Garcia, 166 Fed.Appx. 133 (5th Cir. 2006), and he was subsequently sentenced again to 100 months in prison with two years of supervised release. (See doc. 62.) After his second direct appeal was denied, see United States v. Sanchez-Garcia, 216 Fed.Appx. 424 (5th Cir. 2007), cert. denied, 551 U.S. 1125 (2007), he filed a motion under 28 U.S.C. § 2255 challenging his conviction. (See 3:16-CV-638-G, docs. 1 & 5.) That motion was dismissed as time-barred on May 17, 2017. (See 3:16-CV-638-G, doc. 20.)

         Movant now argues that he is an agent of the F.B.I. and C.I.A. and a lawful permanent resident immune from prosecution from illegal reentry, the Assistant United States Attorney who prosecuted him is guilty of treason, and he is not subject to this Court's jurisdiction. (See doc. 91 at 1-2, 6.) He seeks his immediate release from prison. (See doc. 91.)

         II. NATURE OF SUIT

         The primary means of collaterally attacking a federal conviction or sentence is under 28 U.S.C. § 2255. Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990). “Relief under this section is warranted for any error that ‘occurred at or prior to sentencing.'” Id. (quoting United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)). Because Movant challenges his federal conviction and sentence and seeks release from custody, his motion is properly construed as a motion to vacate under 28 U.S.C. § 2255.

         III. JURISDICTION

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). They have “a continuing obligation to examine the basis for jurisdiction.” See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).

         Under 28 U.S.C. § 2255(h), a district court lacks jurisdiction over a successive § 2255 motion unless it was first authorized by a United States Court of Appeals. See United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015). A subsequent § 2255 motion is considered successive when it: “1) raises a claim challenging the [movant's] conviction or sentence that was or could have been raised in an earlier [motion to vacate]; or 2) otherwise constitutes an abuse of the writ.” United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). Under Orozco-Ramirez, Movant was required to present all available claims related to his conviction or sentence in his first § 2255 motion. This “requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court.” 211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).

         Here, Movant challenges the same criminal judgment as in his prior § 2255 motion, which was dismissed as time-barred. Because he now raises claims that he could have raised in his earlier motion, this motion is successive within the meaning of § 2255.

         When a motion to vacate is successive, the movant must seek an order from the Fifth Circuit Court of Appeals that authorizes this Court to consider it. See 28 U.S.C. § 2244(b)(3)(A) (made applicable to motions to vacate by § 2255). The Fifth Circuit “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). To present a claim in a second or successive application that was not presented in a prior application, the application must show that it is 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 him 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. Id. § 2244(b)(2).

         Because the Fifth Circuit has not issued an order authorizing this Court to consider Movant's successive § 2255 motion, this Court lacks jurisdiction over it. A district court may dismiss such a motion. See Fulton, 780 F.3d at 686. “Alternatively, a district court may transfer a petition lacking authorization to [the Fifth Circuit] for want of jurisdiction upon a finding that the petition is successive.” Fulton, 780 F.3d at 686. Movant's motion should be transferred to the Fifth Circuit.

         IV. ...


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