United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
Alejandro Tamayo filed a Mandatory Judicial Notice that the
District Court construed as a motion to vacate, set-aside, or
correct sentence under 28 U.S.C. § 2255. For the
following reasons, the motion should be transferred to the
Fifth Circuit Court of Appeals as successive.
August 1, 2006, Movant pled guilty to conspiracy to possess
with the intent to distribute more than 500 grams of
methamphetamine and more than five kilograms of cocaine. On
November 27, 2006, the District Court sentenced him to life
imprisonment. On December 26, 2007, the Fifth Circuit Court
of Appeals affirmed his sentence. United States v.
Tamayo, 260 Fed.Appx. 700 (5th Cir. 2007) (unpublished).
Movant's fifth § 2255 motion. On June 7, 2011, the
District Court denied Movant's first motion on the
merits. See Tamayo v. United States, 3:09-CV-94-M
(N.D. Tex.) The court subsequently transferred Movant's
next three § 2255 motions to the Fifth Circuit as
successive. See Tamayo v. United States, Nos.
3:13-cv-3473-M, 3:13-cv-5035-M, and 3:16-cv-1863-M. The Fifth
Circuit has not granted Movant authorization to file a second
or successive motion.
February 18, 2019,  Movant filed the instant motion, in
which he claims: (1) his conviction is void; (2) the Court
had no criminal jurisdiction over his case; and (3) his
prosecution was unconstitutional.
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a federal prisoner may file a
second or successive motion for post-conviction relief.
Antiterrorism and effective death penalty act, Pub. L.
104-132, 110 Stat. 1214 (1996). A defendant must show that
the successive motion 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.
28 U.S.C. § 2255. This determination must be made by a
three-judge panel of the court of appeals before defendant
files his motion in district court. 28 U.S.C. §§
2241 and 2255.
Fifth Circuit has not issued an order authorizing this Court
to consider the successive motion. Movant must obtain such an
order before he files another motion for post-conviction
§ 2255 motion should be TRANSFERRED to the United States
Court of Appeals for the Fifth Circuit pursuant to In re
Epps, 127 F.3d 364, 365 (5th Cir. 1997).
FOR SERVICE AND NOTICE OF RIGHT TO
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to any part of this report and recommendation must file
specific written objections within 14 days after being served
with a copy. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). To be specific, an objection must
identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and
specify the place in the magistrate judge's report and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal