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United States v. Chavallo

United States District Court, E.D. Washington

January 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EUSEVIO CHAVALLO, JR., Defendant.

          ORDER DENYING DEFENDANT'S FIRST SUCCESSIVE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         Defendant 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.

         Successive § 2255 Motion

         Pursuant 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.

         The 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. § 2244(b)(3)(A).

         Defendant 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.

         Defendant 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.

         Instead, 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 merit.

         Defendant 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.

         In 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 Defendant ...


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