United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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
NATURE OF SUIT
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.
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).
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)).
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.
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).
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