Lee v. United States

1 KM WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA United States of America, No. CV-24-08062-PCT-JAT 10 Plaintiff, CR-05-00594-PCT-JAT v. ORDER Duane Thomas Lee, 13 Defendant/Movant.

15 Pending before the Court are self-represented Movant Duane Thomas Lee’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) and Motion for Appointment of Counsel (Doc. 2). The Court will summarily deny the Motion.

19 I. Background 20 This is Movant’s third § 2255 Motion challenging his conviction and sentence in CR 05-00594-PCT-JAT. The first motion was denied on the merits on April 29, 2009 (Doc. 58 in CR 05-00594-PCT-JAT). On February 16, 2017, the Ninth Circuit Court of Appeals authorized Movant to file a second § 2255 Motion, which was filed in CV 16- 08138-PCT-JAT (JFM)). On October 9, 2018, the Court denied the second § 2255 Motion.

25 Movant appealed and, on May 19, 2023, the Ninth Circuit affirmed the dismissal of the second § 2255 Motion. On March 19, 2024, Movant filed a “Motion to Dismiss Case” (Doc. 50 in CV 16-08138), and a Motion for Appointment of Counsel (Doc. 51 in CV 16- 08138). In a March 26, 2024 Order, the Court construed the “Motion to Dismiss” as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and directed the Clerk of Court to open a new civil case for consideration of the § 2255 Motion. The Court opened this case and filed a copy of the new Motion in Movant’s criminal case (Doc. 69 in CR 05-00594-PCT-JAT).

5 Under 28 U.S.C. §§ 2255(h) and 2244, Movant may not file a second or successive § 2255 motion in the district court unless he has obtained a certification from the Ninth Circuit Court of Appeals authorizing the district court to consider the second or successive § 2255 motion. Because Movant has failed to obtain permission from the Ninth Circuit before filing this successive § 2255 motion, the Court lacks subject matter jurisdiction over the successive § 2255 motion and must dismiss it. See United States v. Allen, 157 F.3d 11 661, 664 (9th Cir. 1998) (concluding that the district court lacked jurisdiction to consider a successive § 2255 motion when movant had failed to request certification from the appellate court prior to filing successive § 2255 motion in the district court); United States v. Alvarez-Ramirez, 128 F. Supp. 2d 1265, 1267 (C.D. Cal. 2001) (dismissing a second § 2255 motion for lack of subject matter jurisdiction because movant failed to obtain Ninth Circuit certification).

17 Pursuant to Ninth Circuit Rule 22-3(a), the Court will direct the Clerk of Court to refer Movant’s second § 2255 motion to the Ninth Circuit Court of Appeals and will deny as moot Movant’s Motion for Appointment of Counsel.

20 IT IS ORDERED: 21 (1) The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 69 in CR 05-00594-PCT-JAT) is denied and the civil action opened in connection with this Motion (CV 24-08062-PCT-JAT) is dismissed without prejudice. The Clerk of Court must enter judgment accordingly.

25 (2) Movant’s Motion for Appointment of Counsel (Doc. 2) is denied as moot.

26 (3) The Clerk of Court must send a copy of this Order and Movant’s § 2255 Motion (Doc. 1 in CV 24-08062-PCT-JAT) to the Ninth Circuit Court of Appeals and to Plaintiff United States of America.

1 (4) Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the 2| event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court’s procedural ruling debatable. See 4| Slack v. McDaniel, 529 U.S. 473, 484 (2000).

5 Dated this 3rd day of June, 2024.

9 James A. Teil Org Senior United States District Judge -3-