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United States v. Chavallo

United States District Court, E.D. Washington

June 19, 2018

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

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

          ROSANNA MALOUF PETERSON, UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         On June 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.

         Mr. 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. 156.

         Mr. 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.

         Mr. 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.

         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).

         Mr. 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.

         Nevertheless, 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.

         Similarly, 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 well.

         Statute of Limitations for ...


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