United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Cooler United States District Judge.
Ramiro Cervantes (“Cervantes”) filed with this
Court a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Government
has responded in opposition to his motion. For the following
reasons, the motion is due to be denied.
was found guilty by a jury on August 7, 2002, of one count of
Conspiracy to Distribute a Mixture and Substance containing
Methamphetamine in violation of Title 18, United States Code,
Sections 846, 841(a)(1) and (b)(1)(A). On January 23, 2003,
Cervantes was sentenced to a total prison term of 324 months.
the imposition of his sentence, Cervantes pursued a direct
appeal, and on December 12, 2003, the Eleventh Circuit Court
of Appeals affirmed his sentence in a 16-page unpublished
February 28, 2005, Cervantes filed a motion pursuant to
§ 2255, raising the same three arguments that the Court
of Appeals had rejected in his direct appeal. See
Case No. 2:05-cv-08017-LSC-RRA. This Court denied his motion
and dismissed the action on August 20, 2007.
5, 2016, Cervantes filed the instant motion.
contends that the “Retroactive Redesignation of
Petitioner's Felony to a Misdemeanor under California
Proposition 47, ” makes him eligible for a corrected
sentence. However, this Court lacks jurisdiction to consider
a prisoner may file a second or successive § 2255
motion, the prisoner must first obtain an order from the
Eleventh Circuit authorizing the district court to consider
the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).
Without the Eleventh Circuit's authorization, the
district court lacks jurisdiction to consider a second or
successive § 2255 motion. United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). There is no
indication that Cervantes has received such authorization
from the Eleventh Circuit. Therefore, his motion is due to be
dismissed for lack of jurisdiction.
this Court possessed jurisdiction, Cervantes' motion
would be due to be dismissed as time-barred. The
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) provides for a one-year period in which
a motion for post-conviction relief under § 2255 must be
filed. Under the AEDPA, the one-year period in which to file
a motion under § 2255 begins to run from the latest of
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making such a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively