United States v. Wade

1

UNITED STATES OF AMERICA, Plaintiff, v. RICKON WADE, Defendant.

No. 2:21-cr-00001-GMN-BNW

United States District Court, D. Nevada

July 7, 2023

ORDER

GLORIA M. NAVARRO, DISTRICT JUDGE UNITED STATES DISTRICT COURT

Pending before the Court is the Second Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (“Second § 2255 Mot.”), (ECF No. 162), filed by Petitioner Rickon Wade (“Petitioner”).

For the reasons discussed below, the Court DISMISSES Petitioner's Second Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255.

The Court incorporates the background and procedural history of this case from its Order denying Petitioner's First Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“First § 2255 Mot.”). (Order 2:1-18, ECF No. 161). Petitioner filed the instant Second Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 after the Court's denial of his First Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, (ECF No. 135). For the reasons set forth below, the Court determines it lacks jurisdiction over Petitioner's § 2255 Motion and refers the matter to the Ninth Circuit Court of Appeals.

“A petitioner is generally limited to one motion under § 2255, and may not bring a bring a ‘second or successive motion' unless it meets the exacting standards of 28 U.S.C. § 2255(h).” United States v Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). Section 2255(h) states that:

A second or successive motion must be certified as provided in [28 U.S.C.] 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.

But not all second motions brought under § 2255 are “second or successive.” Magwood v Peterson, 561 U.S. 320, 344 (2010). Instead, the phrase is a “habeas ‘term of art.'” Id.; see also Jones v. United States, 36 F.4th 974, 980 (9th Cir. 2022).

First, to be second or successive, a petition must challenge the same judgment as the earlier petition. Magwood, 561 U.S. at 341-42. Here, Petitioner has challenged the same judgment in his first and second petitions. (Compare Second § 2255 Mot. with First § 2255 Mot.)

Next, in the Ninth Circuit, “[g]enerally, a new petition is ‘second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001); see also United States v. Lopez, 577 F.3d 1053, 1068 (9th Cir. 2009); Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). In contrast, “second-in-time petitions based on events that do not occur until a first petition is concluded” are not second or successive. United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011); United States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022). And a second-in-time petition is not “second or successive” if filed when the issue raised in the second petition would have been premature if raised in the first petition. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998).

Here, there is no doubt that Petitioner's Second § 2255 Motion raises issues that were ripe at the time that he filed his First § 2255 Motion. Indeed, Petitioner's Second § 2255 reiterates the exact arguments and points of authority raised in his First § 2255 Motion. (Compare Second § 2255 Mot. with First § 2255 Mot.). Thus, the factual predicate for each of these claims clearly existed when Petitioner's First § 2255 Motion was filed. Therefore, Petitioner's claims “could have been adjudicated on their merits in an earlier petition,” making the Second § 2255 second or successive. Cooper, 274 F.3d at 1274.

IV. CONCLUSION

Ninth Circuit Rule 22-3(a) provides that if “a second or successive” petition or motion, or “an application for authorization to file [such a petition or] motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Having found Petitioner's Second § 2255 Motion to be second or successive, IT IS HEREBY ORDERED that Petitioner's Second Motion to Vacate, Set Aside, or Correct Sentence under § 2255, (ECF No. 162), is DISMISSED and the Clerk of Court is...