United States District Court, E.D. Washington
ORDER DENYING MOTION
F. SHEA, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant/Movant Jose Manuel
Aguierre-Ganceda's “Memorandum of Law in Support of
28 U.S.C. § 2255, in the Alternative, Successive-in-Time
Motion Pursuant to 28 U.S.C. § 2255, ” ECF No.
244. Also before the Court is Mr. Aguierre-Ganceda's
related Motion for Appointment of Counsel, ECF No. 243. As
explained below, the Court lacks jurisdiction and therefore
denies relief and dismisses Mr. Aguierre-Ganceda's
successive § 2255 motion.
PROCEDURAL HISTORY AND PRIOR § 2255
2004, following jury trial, Mr. Aguirre-Ganceda was convicted
of conspiracy to distribute methamphetamine, distribution of
methamphetamine, possession with intent to distribute
methamphetamine, and endangering human life while illegally
manufacturing or attempting to illegally manufacture a
controlled substance. ECF No. 133. On August 18, 2004, the
Court sentenced Mr. Aguirre-Ganceda to the statutory minimum
of life imprisonment based on his four prior drug
convictions. See ECF Nos. 64, 151 & 220-2. The
U.S. Court of Appeals for the Ninth Circuit affirmed the
verdict and sentence. ECF No. 174. On October 16, 2006, the
U.S. Supreme Court denied Mr. Aguierre-Ganceda's Petition
for Writ of Certiorari. See ECF No. 187.
January 11, 2008, Mr. Aguierre-Ganceda filed his first §
2255 motion. ECF No. 180. In it, he claimed to have received
ineffective assistance from defense counsel and that the
sentencing enhancement under 21 U.S.C. § 851 for prior
drug convictions was unconstitional because the convictions
were not found proven beyond a reasonable doubt by a jury.
See ECF No. 180. The Court denied Mr.
Aguierre-Ganceda's first § 2255 motion as untimely
for failure to satisfy the one-year limitation period under
§ 2255(f), ECF No. 187, and the Ninth Circuit affirmed
this Court's denial, ECF No. 203.
March 2, 2015, Mr. Aguierre-Ganceda filed a motion for a
sentence reduction under U.S. Sentencing Guidelines §
1B1.1(b) and Amendment 782. ECF No. 219. The Court denied his
motion, however, because Amendment 782 could not alter the
fact that Count 1 carried a statutory mandatory minimum
sentence of life imprisonment due to his prior convictions.
See ECF No. 225.
6, 2015, Mr. Aguierre-Ganceda filed a second § 2255
motion, this time claiming that the U.S. Attorney's
Office was “using 21 U.S.C. § 851 as a weapon for
retaliation for exercising [the] right to proceed to trial by
jury.” ECF No. 236 at 6-7. The Court denied Mr.
Aguierre-Ganceda's second § 2255 motion for failure
to comply with § 2255(h), which requires certification
from the Ninth Circuit prior to filing a second § 2255
motion. See ECF No. 239.
Aguierre-Ganceda now brings another motion pursuant to §
2255. In his current motion, Mr. Aguierre-Ganceda argues that
under the categorical approach, each of his prior California
state convictions cannot qualify as a “prior conviction
for a felony drug offense” under 21 U.S.C. § 841
because the applicable California statutes are too broad.
See ECF No. 244. He also states that one of his four
prior California state convictions has been vacated.
See ECF No. 244 at 13. Once again, however, there is
no indication that Mr. Aguirre-Ganceda obtained Ninth Circuit
certification before filing the instant § 2255 motion.
2255(h) states, A second or successive motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain--
(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
fact finder would have found the movant guilty of the
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h); see also Rules Governing
Section 2255 Proceedings in the United States District
Courts, Rule 9 - Second or Successive Motions (“Before
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 . . .
rare cases, a literal interpretation of “second or
successive” will prevent meaningful federal review. The
U.S. Supreme Court has stated that it is “hesitant to
construe a statute, implemented to further the principles of
comity, finality, and federalism, in a manner that would
require unripe (and, often, factually unsupported) claims to
be raised as a mere formality, to the benefit of no
party.” Panetti v. Quarterman, 551 U.S. 930,
947 (2007). In Panetti, the Supreme Court laid out
three reasons for carving out limited exceptions to the
general requirement that certification be obtained from a
court of appeals prior to district court adjudication: (1)
the implications of adopting a literal interpretation of
“second or successive” for habeas practice, (2)