United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S FIRST SUCCESSIVE MOTION
TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C.
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT is Defendant's First Successive Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255, ECF No. 178. The Court has reviewed the motion and the
record, the Government's response and praecipe, ECF Nos.
182 and 183, and is fully informed.
previously filed a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255, ECF No. 158, and the
Court denied that motion. See ECF No. 165. Defendant
then filed his present, successive petition. ECF No. 178.
§ 2255 Motion
to 28 U.S.C. § 2255,
[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 factfinder would have found the movant
guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.
statutory reference to 28 U.S.C. § 2244 refers to the
requirement that “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. §
filed an application with the Ninth Circuit Court of Appeals
to file a successive § 2255 motion on May 18, 2017.
Chavallo v. United States, No. 17-71312, Docket
Entry No. 1 (9th Cir. May 18, 2017). The Ninth Circuit Court
of Appeals denied his application on July 14, 2017.
Id., Docket Entry No. 12. On July 10, 2017,
Defendant sent a letter to the Ninth Circuit Court of Appeals
voluntarily withdrawing his motion, which was not docketed
until after the court's July 14 Order. Id.,
Docket Entry No. 13.
captioned his current petition in this Court as “A
First 2255 Successive Motion of Ineffective Assistance of
Counsel Under a Rule 16 Criminal Procedures [sic].” ECF
No. 178. Defendant indicates that he initially sent his
successive motion to the Ninth Circuit Court of Appeals.
Id. at 1. Defendant has failed to provide any basis
that the Ninth Circuit's Order denying Defendant's
application to file a successive § 2255 motion, issued
July 14, 2017, does not apply to his present motion.
the Court concludes that Defendant has not been authorized to
file a successive § 2255 motion. Therefore, this Court
is without jurisdiction to consider his arguments and must
deny Defendant's successive motion, ECF No. 178. Even if
this Court were determined to have jurisdiction to consider
Defendant's petition, Defendant's petition is without
entered a plea of guilty to the charges in the indictment on
June 4, 2014. The terms of Defendant's Rule 11(c)(1)(C)
Plea Agreement stated in relevant part that
Defendant further expressly waives his right to file any
post-conviction motion attacking his conviction and sentence,
including a motion pursuant to 28 U.S.C. § 2255, except
one based on ineffective assistance of counsel based on
information not now known by Defendant and which, in the
exercise of due diligence, could not be known by Defendant by
the time the Court imposes sentence.
ECF No. 94 at 16.
light of this express waiver, the Court only will analyze
Defendant's arguments of ineffective assistance of
counsel based upon facts that were not known, or knowable, to