TANYA WALTON PRATT, JUDGE United States District Court Southern District of Indiana
Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability
On July 23, 2015, Antonio Mendoza filed a post-judgment motion in No. 1:11-cv-00018-TWP-MJD "seeking relief to reopen 60(b)(1) thru 60(b)(6) and/or reconsider Rule 60(b)." As set forth in the Court's July 31, 2015 entry, the Court was required to treat this motion as a new action brought under 28 U.S.C. § 2255. This case was opened, and Mr. Mendoza's § 2255 motion is now before the Court.
I. Section 2255 Motion
Mr. Mendoza was convicted in No. 1:04-cr-0155-H/F-1 of various drug offenses. Mr. Mendoza has previously challenged these convictions on two prior occasions via 28 U.S.C. § 2255.
First, on January 3, 2011, Mr. Mendoza filed an action for relief pursuant to 28 U.S.C. § 2255, which reached an adjudication on the merits in No. 1:11-cv-00018-TWP-MJD. Final judgment was entered on July 29, 2013. Mr. Mendoza's request for a certificate of appealability was denied by this Court and by the Seventh Circuit Court of Appeals.
Second, on March 11, 2014, Mr. Mendoza filed a motion for relief from judgment under Rule 60(b)(3). The Court was required to treat that motion, as it did the instant motion, as a new action brought under 28 U.S.C. § 2255. Final judgment was entered on May 9, 2014. Mr. Mendoza did not appeal.
When there has already been a decision on the merits in a federal habeas action, to obtain another round of federal collateral review a petitioner requires permission from the Court of Appeals under 28 U.S.C. § 2244(b). See Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000). This statute, § 2244(b)(3), "creates a 'gatekeeping' mechanism for the consideration of second or successive [habeas] applications in the district court." Felker v. Turpin, 518 U.S. 651, 657 (1996); see Benefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005); United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005). A subsequent motion is "second or successive" within the meaning of the statute when the same underlying conviction is challenged. See Dahler v. United States, 259 F.3d 763 (7th Cir. 2001).
The present action is yet another attempt to collaterally challenge the conviction in No. 1:04-cr-0155-H/F-1, however, it is presented without authorization to proceed from the Court of Appeals. Accordingly, the action must be dismissed for lack of jurisdiction pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Judgment consistent with this Entry shall now issue.
This entry shall be docketed in the underlying criminal action, No. 1:04-cr-0155-TWP-MJD-1.
II. Denial of Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Mr. Mendoza has failed to show that reasonable jurists would find it "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability.
IT IS SO ORDERED. Date:8/3/2015
/s/_________
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District of Indiana
Distribution: Antonio Mendoza, 74707-179
Victorville U.S. Penitentiary
Inmate Mail/Parcels
P.O. Box 3900
Adelanto, CA 92301
Note to Clerk: Processing this document requires actions in addition to docketing and distribution.