Punzalan v. United States

• Court: District Court, D. Guam
• Decided: August 4, 2016
• Docket: 1:16-cv-00066
• Status: Unknown

Opinion

1 2 3 4 5 6 7 IN THE DISTRICT COURT OF GUAM 8 9 UNITED STATES OF AMERICA, CRIMINAL CASE NO. 07-00075 CIVIL CASE NO. 16-00066 10 Plaintiff, 11 vs.

12 NATHANIEL DIAZ PUNZALAN, ORDER 13 Defendant. 14 15 16 On July 7, 2016, the Defendant, proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 17 to Vacate, Set Aside, or Correct Sentence (the “Second Section 2255 Motion”). See ECF No. 189. 18 Because the Defendant’s Second Section 2255 Motion is a “second or successive” petition that 19 requires Section 2255(h) certification before this court may assert jurisdiction, it is hereby DENIED 20 without prejudice. 21 BACKGROUND 22 On August 14, 2008, following a jury trial, the Defendant was found guilty of one count of 23 Possession of a Firearm by a Felon. See Verdict Form, ECF No. 116. On May 5, 2009, the court 24 sentenced the Defendant to 120 months imprisonment, followed by three years of supervised release. 25 See Judgment, ECF No. 138. 26 On May 8, 2009, the Defendant appealed his conviction to the Ninth Circuit Court of 27 Appeals, which subsequently affirmed his conviction on January 19, 2011. See Notice of Appeal, 28 ECF No. 142, and Mandate, ECF No. 158. The Defendant thereafter filed a petition for writ of 1 certiorari to the United States Supreme Court, which was denied on June 6, 2011. See Punzalan v. 2 United States, 131 S. Ct. 2981 (2011). 3 On December 20, 2011, the Defendant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set 4 Aside, or Correct Sentence (the “First Section 2255 Motion”). See ECF No. 162. Therein, the 5 Defendant asserted two grounds to invalidate his sentence: (1) the evidence used at trial was the 6 product of unlawful entry and search, and (2) he received ineffective assistance of counsel. Id. at 7 5-6. On February 24, 2014, the court denied the Defendant’s First Section 2255 Motion. See Order, 8 ECF No. 180. 9 On July 7, 2016, the Defendant filed the instant Second Section 2255 Motion. See ECF 10 No. 189. Therein, he asserted that he had been sentenced under the “residual clause,” which clause 11 has been “deem[ed] unconstitutionally vague.” See Second Section 2255 Motion at ¶12.A, ECF 12 No. 189. The court believes the Defendant is relying upon the Supreme Court’s decision in Johnson 13 v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), which held that the residual clause of the 14 Armed Career Criminal Act (18 U.S.C. § 924(e)) is unconstitutionally void for vagueness. 15 ANALYSIS 16 A defendant is required to seek and receive certification by a panel of the appropriate court 17 of appeals before he may file a second or successive habeas petition in the district court. See 18 28 U.S.C. §§ 2255(h), 2244(b)(3)(A). To obtain certification to file a second or successive motion 19 from the appellate court, a defendant must demonstrate that the motion was filed based on 20 (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 21 reasonable fact finder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review 22 by the Supreme Court, that was previously unavailable. 23 28 U.S.C. § 2255(h); see also Rule 9 Governing § 2255 Cases in the U.S. District Courts (“Before 24 presenting a second or successive petition, the moving party must obtain an order from the 25 appropriate court of appeals authorizing the district court to consider the petition as required by 28 26 U.S.C. § 2255.”). 27 This requirement of Section 2255(h) creates a jurisdictional bar to a defendant’s claims in 28 this court if he does not first obtain the Ninth Circuit Court of Appeals’ authorization. Ezell v. USA v. Nathaniel Diaz Punzalan, Criminal Case No. 07-00075 and Civil Case No. 16-00066 Order Denying Second Section 2255 Motion page 3 1 || United States, 778 F.3d 762, 765 (9th Cir. 2015). A second habeas petition is not considered 2 || successive if the initial habeas petition was dismissed for a technical or procedural reason, rather 3 |] than on the merits. Slack v. McDaniel, 529 U.S. 473, 485-87 (2000). 4 In this case, the Defendant’s First Section 2255 Motion was decided on the merits. See 5 || Order, ECF No. 180. Accordingly, the instant Second Section 2255 Motion is a second or successive 6 || petition that requires certification from the Ninth Circuit Court of Appeals, which the Defendant has 7 || not yet obtained. 8 CONCLUSION 9 The Defendant’s Second Section 2255 Motion (ECF No. 189) is a “second or successive” 10 || petition that requires certification from the Ninth Circuit Court of Appeals before this court may 11 || assert jurisdiction. Accordingly, the court DENIES without prejudice the Second Section 2255 12 || Motion. The Defendant may re-file his request once he obtains the appropriate certification from 13 || the Ninth Circuit Court of Appeals authorizing the filing of a second or successive Section 2255 14 || habeas petition with this court. Additionally, the court DENIES without prejudice the Defendant’s 15 || Motion to Appoint Counsel (ECF No. 188). The Defendant can renew his request for counsel if the 16 || appellate court authorizes the filing of a second Section 2255 petition. 17 IT IS SO ORDERED. 18 19 /s/ Frances M. Tydingco-Gatewood 20 □ Chief Judge le Dated: Aug 04, 2016 21 ca 22 23 24 25 26 27 28