United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
Following a bench trial in December 2008, this Court found
Petitioner, Juan David Vazquez-Uribe guilty of one count of
conspiracy to import three hundred kilograms of narcotics in
violation of 21 U.S.C. § 963 and one count of conspiracy
to distribute three hundred kilograms of narcotics in
violation of 21 U.S.C. § 846. (See ECF No. 46).
This Court thereafter sentenced Petitioner to 360 months'
imprisonment on each count to run concurrently to one another
in July 2009. (Id.). Petitioner appealed, but his
conviction and sentence were affirmed by the Third Circuit in
2011. (ECF No. 61).
Following the conclusion of his direct appeal, Petitioner
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. (See Docket No. 12-6873 at ECF No. 1).
Following briefing, this Court denied Petitioner's §
2255 motion and denied Petitioner a certificate of
appealability in November 2014. (Docket No. 12-6873 at ECF
No. 12-13). Petitioner appealed, and the Third Circuit denied
him a certificate of appealability in May 2015. (Docket No.
12-6873 at ECF No. 16).
July 2018, Petitioner filed in his criminal docket a motion
seeking relief pursuant to either Federal Rule of Criminal
Procedure 35(a) or 28 U.S.C. § 2255 based on a
sentencing claim. (Docket No. 01-768 at ECF No. 69). This
Court dismissed that motion to the extent it was filed
pursuant to § 2255 on August 27, 2018, as it was in fact
a second or successive motion to vacate sentence brought
without leave of the Court of Appeals. (Docket No. 01-768 at
ECF Nos. 70-71).
or about December 28, 2018, Petitioner filed with the Court
of Appeals an application for leave to file a second or
successive § 2255 motion. (Third Circuit Docket No.
18-3788 Docket Sheet). That application has not yet been
decided, as Petitioner has yet to properly perfect his
application before the Third Circuit. (Id.).
Although Petitioner has not been granted permission to file a
second or successive petition, on or about February 11, 2019,
he submitted to this Court another § 2255 motion, one
which apparently raises the same claim for which he sought
permission to file a successive § 2255 motion before the
Supreme Court. (ECF No. 1). It is clear from the record of
this matter and Petitioner's proceedings before the Third
Circuit that Petitioner has not yet received permission from
the Third Circuit to file this successive § 2255 motion.
Pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings, this Court must preliminarily review
Petitioner's motion to vacate and “dismiss the
motion” if it “plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.”
Pursuant to this rule, a district court is “authorized
to dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. §§ 2244(b) and 2255(h), a
petitioner may not file a second or successive motion to
vacate sentence in this Court without first acquiring
authorization from the appropriate Court of Appeals. Absent
authorization from the Court of Appeals, this Court has no
jurisdiction over a second or successive motion to vacate
sentence. Robison v. Johnson, 313 F.3d 128, 139 (3d
Cir. 2002); Blystone v. Horn, 664 F.3d 397, 412 (3d
Cir. 2011) (a “petitioner's failure to seek
authorization from the appropriate appellate court before
filing a second or successive habeas petition acts as a
jurisdictional bar”). When “a second or
successive habeas petition is erroneously filed in a district
court without the permission of a court of appeals, the
district court's only option is to dismiss the petition
or transfer it to the court of appeals.”
Robinson, 313 F.3d at 139; see also United
States v. Hawkins, 614 Fed.Appx. 580, 582 (3d Cir.
2015). A District Court should only transfer a petition to
the Court of Appeals where the interests of justice so
require, which will usually only be the case where the
proposed second motion to vacate would prima facie meet the
requirements for a second motion set forth in 28 U.S.C.
§ 2255(h). Hawkins, 614 Fed.Appx. at 582.
Pursuant to § 2255(h), a second motion to vacate
sentence will only be authorized where the new claim is
either based on newly discovered evidence of sufficient
merit, or where the new claim is based on a new rule of
constitutional law which has been made retroactive to cases
on collateral review by the Supreme Court which was
previously unavailable. § 2255(h).
Petitioner has sought, but not received, permission from the
Third Circuit to file a successive § 2255 motion.
Because Petitioner has not received that permission, this
Court is without jurisdiction and must dismiss Petitioner's
successive § 2255 motion. Petitioner may not file in
this Court until such time as he has received permission from
the Court of Appeals.
conclusion, Petitioner's current § 2255 motion (ECF
No. 1) is DISMISSED for lack of jurisdiction. An appropriate
 Because Petitioner has already filed a
request for permission to file a second or successive habeas
petition in the Third Circuit based on the same claim
presented here, no point would be served in transferring this
petition to the Third Circuit. Petitioner is free to continue
litigating his application for permission to file in the
Third Circuit, ...