United States District Court, W.D. North Carolina, Asheville Division
TOMAS ALEGRIA FACUNDO, a/k/a Sergio Reynaldo Hernandez, Petitioner,
UNITED STATES OF AMERICA, Respondent. Civil No. 1:17-cv-00135-MR
AMENDED MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on Petitioner's
"Retroactive Motion under 18 [sic] U.S.C. § 2255
Based on Dean v. United States" [Doc. 1]. No response is
necessary from the Government.
prisoner in federal custody may attack his conviction or
sentence on the grounds that it is in violation of the
Constitution or United States law, was imposed without
jurisdiction, exceeds the maximum penalty, or otherwise is
subject to collateral attack. 28 U.S.C. § 2255. Rule
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts provides, however, that:
[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party.
Court has reviewed Petitioner's Motion and the record of
his underlying criminal proceedings and enters summary
dismissal for the reasons stated herein.
February 27, 2007, Petitioner was charged with violations of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1).
[Criminal Case No. 1:07-cr-00019-MR ("CR"), Doc.
1]. On May 4, 2007, Petitioner filed a Plea Agreement by
which he agreed to plead guilty to both charges, and he
stipulated to involvement with a specific amount of actual
methamphetamine. [CR Doc. 14]. On July 9, 2007, Petitioner
appeared before the Court and tendered his guilty pleas which
were accepted by the Court. [CR Doc. 18]. On January 30,
2008, the Court sentenced Petitioner to terms of 120 months
of imprisonment for the drug conviction and to a consecutive
60-month term for the firearm conviction. [CR Doc. 22]. The
Court's Judgment was entered on February 8, 2008. dj.
No direct appeal was filed in Petitioner's criminal case.
April 12, 2010, Petitioner, acting pro se, filed a
Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255, contending that his guilty plea was
not voluntarily and intelligently entered, and that his
attorney was ineffective for failing to file a direct appeal
as he reportedly requested. [Civil Case No. 1:10-cv-00078,
Doc. 1]. The Court dismissed the Motion to Vacate as untimely
on June 2, 2010. cL, Doc. 7].
Court received the instant § 2255 Motion to Vacate on
May 19, 2017. [Doc. 1]. Petitioner contends he is entitled to
resentencing in light of the Supreme Court's recent
decision in Dean v. United States, 137 S.Ct.
the Antiterrorism and Effective Death Penalty Act of 1996, a
prisoner cannot file a "second or successive"
motion under § 2255 unless it is "certified ... by
a panel of the appropriate court of appeals to contain-(1)
newly discovered evidence ... 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(h). Before filing a
successive motion to vacate, a prisoner must obtain
authorization from a circuit court. 28 U.S.C. §
district court lacks jurisdiction to consider a second or
successive § 2255 motion unless the motion has been
certified in advance by the appropriate circuit court of
appeals. See § 2255(h). Because Petitioner has
not obtained authorization from the Fourth Circuit to file a
second or successive § 2255 motion, this Court lacks
jurisdiction to consider the instant ...