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United States v. Longoria

United States District Court, S.D. Texas, Corpus Christi Division

May 9, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
RUSSELL JAMES LONGORIA, Defendant-Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE

         Defendant/Movant Russell James Longoria filed a “Motion to Stay, Hold, Abeyance, Until Pending Case Has Been Resolved Under Michael Herrold v. United States, 137 S.Ct. 310 (2016)” (D.E. 58). The Court construes the motion as a request to open a § 2255 motion and hold it open until the Supreme Court decides Herrold. The Court concludes that it is not necessary to order a government response because “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (§ 2255 Rules) (2018). For the reasons stated herein, the Court dismisses Longoria's motion because the Court lacks jurisdiction over the motion and denies him a certificate of appealability.

         BACKGROUND

         Longoria was sentenced in 2013 to 188 months in the Bureau of Prisons as an Armed Career Criminal after he was convicted of being a felon in possession of a firearm. He did not appeal, but filed a motion to vacate, set aside, or correct sentence in which he challenged the use of his previous convictions (two of which were Texas burglaries) as predicate offenses for enhanced sentencing and claimed his counsel was ineffective. D.E. 33, 36. After a hearing, the Court denied the motion and entered final judgment on November 24, 2015. D.E. 53, 54. He filed a second § 2255 after Johnson v. United States, 135 S.Ct. 2551 (2015). The Court transferred his motion to the Fifth Circuit as second or successive, but the Fifth Circuit declined to grant him a certificate of appealability. In his present filing, Longoria quotes from what appears to be an Order on a petition he filed with the United States Supreme Court, but this Court has not been able to determine that he filed a petition for certiorari or any order resulted.

         Longoria now seeks relief based upon the recent en banc decision of the Fifth Circuit Court of Appeals in Herrold v. United States, 883 F.3d 517 (5th Cir. 2018), which held that Texas burglary does not constitute generic burglary and Texas burglary convictions no longer qualify as predicate offenses pursuant to the Armed Career Criminal Act. A petition for writ of certiorari in Herrold was filed in April 2018 by the Solicitor General of the United States, but has not yet been ruled on. United Sates v. Herrold, No. 17-1445.

         ANALYSIS

         Because Longoria's present motion was filed after a previous § 2255 motion, his current motion is a second or successive motion. In pertinent part, 28 U.S.C. § 2255(h) provides:

         A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain -

(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.

28 U.S.C. § 2255(h).

         Where a claim is second or successive, the movant is required to seek, and acquire, the approval of the Fifth Circuit before filing a second § 2255 motion before this Court. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); 28 U.S.C. § 2244 (b)(3)(A) (“Before 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.”).

         Longoria's motion does not indicate that he has sought or obtained permission from the Fifth Circuit to file the present motion. Until he does so, this Court does not have jurisdiction over the motion. Accordingly, Longoria's motion is denied as a second or successive § 2255 motion. See United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000) (district court properly dismissed second or successive claim).

         CERTIFICATE ...


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