United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S SUCCESSIVE MOTIONS TO
VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. §
ROSANNA MALOUF PETERSON, UNITED STATES DISTRICT JUDGE
THE COURT are Defendant's Second Successive Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255, ECF No. 185, and two other related motions, ECF Nos.
186 and 187. The Court construes these related motions also
as 28 U.S.C. § 2255 motions. The Court has reviewed the
motions, has considered the record, and is fully informed.
4, 2014, Defendant Eusevio Chavallo, Jr., pled guilty to one
count of Distribution of a Mixture or Substance Containing a
Detectable Amount of Methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), and one count of
Possession of a Firearm in Furtherance of a Drug Trafficking
Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).
See ECF No. 95. The Court sentenced Mr. Chavallo to
78 months of incarceration, to be followed by 3 years of
Supervised Release. See ECF No. 112. Mr. Chavallo is
presently an inmate at Sheridan Federal Correctional
Institution, in Sheridan, Oregon.
Chavallo appealed his conviction, ECF No. 115, and the Ninth
Circuit Court of Appeals dismissed his appeal because Mr.
Chavallo waived his right to appeal his conviction and
sentence, and the court of appeals found no arguable issue as
to the validity of the waiver. ECF No. 154 at 2. His petition
for a panel rehearing was denied on March 2, 2016. ECF No.
Chavallo, pleading pro se, subsequently filed a
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255, ECF No. 158, on March 30, 2016. The Court
denied the March 2016 motion on July 7, 2016. See
ECF No. 165. The Ninth Circuit Court of Appeals denied Mr.
Chavallo's request for a certificate of appealability
from the denial of Mr. Chavallo's March 2016 28 U.S.C.
§ 2255 motion on November 7, 2016. See ECF No.
177. On November 1, 2017, Mr. Chavallo filed his first
successive Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255. ECF No. 178. The Court denied
Mr. Chavallo's November 2017 28 U.S.C. § 2255 motion
on January 10, 2018.
Chavallo filed his present, second successive petition on May
16, 2018. ECF No. 185. Mr. Chavallo also has filed two other
related petitions, ECF Nos. 186 and 187, which the Court
construes as additional 28 U.S.C. § 2255 motions.
However, Mr. Chavallo has note filed an Application for
Authorization to File a Second or Successive 28 U.S.C. §
§ 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. §
Chavallo 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.
Mr. Chavallo filed his first successive 28 U.S.C. § 2255
motion in this Court in November 2017. See ECF No.
178. The Court found that Mr. Chavallo 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, did not apply to his November
2017 28 U.S.C. § 2255 motion. ECF No. 184.
the Court concludes that Mr. Chavallo has not been authorized
to file a successive § 2255 motion with regards to his
subsequent successive 28 U.S.C. § 2255 motions, ECF No.
185, 186, and 187. There is no record that Mr. Chavallo has
filed an Application for Authorization to File Second or
Successive 28 U.S.C. § 2255 Motion with the Ninth
Circuit Court of Appeals. Therefore, this Court is without
jurisdiction to consider his arguments and must deny
Defendant's successive motions, ECF No. 185, 186, and
187. Even if this Court were determined to have jurisdiction
to consider Defendant's petition, Defendant's
petition is time-barred and would be denied on that basis as
of Limitations for ...