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Mendoza v. United States

United States District Court, W.D. Pennsylvania

April 6, 2017

MICHAEL MENDOZA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil No. 16-1677

          OPINION

          Joy Flowers Conti Chief United States District Judge

         I. Introduction

         Pending before the court is a second Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (the "second § 2255 motion") filed by pro se petitioner Michael Mendoza ("petitioner"). (ECF No. 158.) Petitioner claims that he is eligible for a sentence reduction pursuant to Amendment 794, which amended the commentary to U.S.S.G. § 3B1.2 effective November 1, 2015. Id. at 4. In response, the government argues that this court lacks jurisdiction to decide petitioner's motion because it is a second or successive § 2255 motion. (ECF No. 159 at 4-5.) Alternatively, the government asserts that even if this court were to construe petitioner's second § 2255 motion as a motion under 18 U.S.C. § 3582(c)(2), he still would not be entitled to relief because his sentence was not based on a guideline range subsequently lowered by the Sentencing Commission, and Amendment 794 does not apply retroactively to cases on collateral review. Id. at 6-8.

         The government is correct. Petitioner previously filed a § 2255 motion, and he did not receive authorization from the United States Court of Appeals for the Third Circuit to file a second or successive § 2255 motion. Therefore, this court lacks subject-matter jurisdiction over petitioner's second § 2255 motion, and the motion must be dismissed for the reasons stated more fully herein. Even if the court were to consider petitioner's pro se filing as a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), he would not be eligible for relief on the basis of Amendment 794.

         II. Background

         On July 31, 2007, petitioner was charged in a one-count superseding indictment with conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. (ECF No. 70.) Following a jury trial, petitioner was found guilty and the court entered a judgment against him on December 12, 2007, imposing a mandatory minimum sentence of 240 months imprisonment followed by a 10-year term of supervised release. (ECF No. 92.)

         After petitioner filed a timely appeal, the government received and provided defense counsel with a Report of Investigation ("ROl") regarding the debriefing of a confidential informant prepared by an agent of the Drug Enforcement Agency as part of a separate investigation. (See ECF No. 153 at 2.) On appeal, petitioner argued that the newly produced evidence was exculpatory, and that he should be granted an evidentiary hearing or a new trial. See United States v. Mendoza. 334 F.App'x 515, 519 (3d Cir. 2009). The Third Circuit Court of Appeals affirmed petitioner's conviction and declined to review his new evidence argument because this court did not have an opportunity to review it in the first instance. Id. On August 10, 2010, petitioner filed a pro se motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 (the "Rule 33 motion"), arguing that the belated disclosure of the ROI constituted a Brady violation. (ECF No. 108.) On September 28, 2010, petitioner filed a § 2255 motion alleging that his trial counsel was ineffective for failing to file a Rule 33 motion based upon the newly discovered evidence (the "first § 2255 motion"). (ECF No. 113.)

         This court appointed an assistant federal public defender to represent petitioner at a hearing on the Rule 33 motion and the first § 2255 motion, which was held on June 7, 2012. (ECF Nos. 135 and 145.) In a memorandum opinion and order dated August 6, 2013, the court concluded that the ROI did not constitute Brady material and denied petitioner's Rule 33 motion. (ECF No. 153 at 26.) The court also denied petitioner's first § 2255 motion, finding that his trial counsel was not ineffective for failing to file a Rule 33 motion. Id. at 28. The court did not issue a certificate of appealability. Id.

         On October 3, 2013, plaintiff filed a notice of appeal of the court's denial of his Rule 33 motion and first § 2255 motion. (ECF No. 154.) On April 21, 2014, the Third Circuit Court of Appeals denied petitioner's application for a certificate of appealability in connection with the first § 2255 motion and summarily affirmed the denial of petitioner's Rule 33 motion. (ECF No. 157.)

         On November 7, 2016, petitioner filed the pending second § 2255 motion, in which he argues that he is eligible for a sentence reduction under Amendment 794 because he was a minor participant in the offense of conviction. (ECF No. 158 at 4.) As previously noted, the government filed a response in opposition to petitioner's second § 2255 motion (ECF No. 159), and the matter is now ripe for disposition.

         III. Discussion

         A. Law applicable to second or successive § 2255 motions

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (the "AEDPA"), which established stringent procedural and substantive requirements that an applicant must satisfy in order to file a second or successive § 2255 motion with a district court. See United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999). Among other things, the AEDPA requires that before filing a second or successive § 2255 motion with a district court, an applicant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A); see also, Rule 9 of the Rules Governing § 2255 Proceedings (requiring that "[b]efore presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion .. ."). The court of appeals may authorize the filing of a second or successive § 2255 motion in the district court only if it contains the following:

(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 reasonable factfinder would ...

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