United States District Court, D. North Dakota
ORDER DISMISSING MOTION
L. HOVLAND, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is the Defendant Rosalio Guitron-Vargas',
“Motion to Vacate Conviction, Acquit and Dismiss
Defendant for want of Due Process and Multiple Constitutional
Violations” filed on August 30, 2017. See
Docket No. 315. For the reasons set forth below, the motion
December 2003, a jury found Vargas guilty on three drug
related offenses and one firearm offense. See Docket
No. 131. On February 26, 2004, Vargas was sentenced to 360
months imprisonment. See Docket No. 149. Vargas
appealed. See Docket No. 151. On September 14, 2005,
the Eighth Circuit Court of Appeals affirmed his conviction
and sentence. See United States v. Barth, 424 F.3d
753 (8th Cir. 2005).
August 7, 2006, Vargas filed a motion under 28 U.S.C. §
2255. See Docket No. 193. The Court denied the
motion on January 17, 2007. See Docket No. 216.
Vargas appealed. The Eighth Circuit Court of Appeals denied
Vargas a certificate of appealability and dismissed the
appeal on September 7, 2007. See Docket No. 238.
Vargas filed a motion to reduce sentence on November 10,
2014. See Docket No. 254. On January 11, 2016, the
Court denied the motion. See Docket No. 273. Vargas
appealed. On February 8, 2016, the Eighth Circuit Court of
Appeals summarily denied the appeal. See Docket No.
278. Now before the Court is a pro se “Motion
to Vacate Conviction, Acquit and Dismiss Defendant for want
of Due Process and Multiple Constitutional Violations”
filed on August 30, 2017. See Docket No. 315.
does not explain what procedural vehicle his motion is
brought pursuant to, but he does briefly mention
“Habeas Corpus Relief” and Rule 60(b).
See Docket No. 315, pp. 15 and 17. Vargas contends,
among other things, that his defense counsel conspired with
the prosecutor to convince him to sign the plea agreement and
perpetrated a fraud upon the Court, that he does not speak or
understand the English language, that he was denied his Sixth
Amendment right to counsel, and his conviction is thus void.
The motion is handwritten in English. It should also be noted
that Vargas did not plead guilty, but rather went to trial
and was found guilty by a jury. The plea agreement attached
as an exhibit to the motion pertains to Vargas'
conviction in a separate case for reentry of a deported
alien. Upon careful review of Vargas' motion, the Court
finds Vargas is essentially seeking habeas relief as he is
challenging his conviction and the conduct of his defense
counsel. Thus, the Court will treat the motion as one filed
pursuant to 28 U.S.C. § 2255.
Court has reviewed the motion as required by Rule 4(b) of the
Rules Governing Section 2255 Proceedings. This is the second
Section 2255 motion Vargas has filed and, thus, the motion is
clearly successive. Before a second or successive Section
2255 motion may be filed in the district court, the applicant
must move the appropriate court of appeals for an order
authorizing the district court to consider the second or
successive motion. 28 U.S.C. §§ 2244(3) and
2255(h); United States v. Lambros, 404 F.3d 1034,
1036-37 (8th Cir. 2005). If a federal inmate files a
successive Section 2255 motion, the district court may either
dismiss the motion for failure to obtain the required
authorization or transfer the motion to the court of appeals.
Id. The record reveals Vargas has not sought
authorization from the Eighth Circuit Court of Appeals to
file a second or successive motion under Section 2255 and,
thus, dismissal is appropriate.
carefully reviewing the entire record and the relevant law,
the Court finds that Vargas' motion is a second or
successive motion under 28 U.S.C. § 2255, filed without
first obtaining authorization from the Eighth Circuit Court
of Appeals under 28 U.S.C. § 2255(h). Accordingly, the
Court issues the following ORDER:
1) Vargas' motion (Docket No. 315) is
2) The Court certifies that an appeal from the denial of this
motion may not be taken in forma pauperis because such an
appeal would be frivolous and cannot be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444-45
3) Based upon the entire record before the Court, dismissal
of the motion is not debatable, reasonably subject to a
different outcome on appeal, or otherwise deserving of
further proceedings. Therefore, a certificate of
appealability will not be issued by this Court. Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983); Tiedman v.
Benson, 122 F.3d 518, 520-22 (8th Cir. 1997). If the
defendant desires further review of his motion he may request
issuance of a certificate of appealability by a circuit judge
of the Eighth Circuit Court of Appeals.