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Cervantes v. United States

United States District Court, N.D. Alabama, Southern Division

May 3, 2017

RAMIRO CERVANTES, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Cooler United States District Judge.

         Petitioner 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.

         I. Background

         Cervantes 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.

         Following 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a direct appeal, and on December 12, 2003, the Eleventh Circuit Court of Appeals affirmed his sentence in a 16-page unpublished opinion.

         On 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.

         On July 5, 2016, Cervantes filed the instant motion.

         II. Discussion

         Cervantes 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 his motion.

         Before 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.

         Even if 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 four events:

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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 ...

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