Application to File Second or Successive Petition Under 28 U.S.C. § 2255 Submitted to Motions Panel July 9, 2012*fn1
Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and Sandra S. Ikuta, Circuit Judges.
Petitioner Jose Luis Buenrostro was tried and convicted of conspiracy to manufacture more than thirty-one kilograms of methamphetamine. Because Buenrostro had two prior felony drug convictions, the district court sentenced him to a mandatory minimum term of life imprisonment without parole. See 21 U.S.C. §§ 846, 851(d)(1), 841(a)(1), (b)(1)(A)(viii). We affirmed Buenrostro's conviction on direct appeal. See United States v. Buenrostro, 163 F.3d 608 (9th Cir. 1998). He then moved the district court to vacate his sentence under 28 U.S.C. § 2255, which the district court denied on the merits.
After the district court concluded Buenrostro's § 2255 proceeding, Buenrostro moved to reopen the proceeding under Federal Rule of Civil Procedure 60(b) due to a newly discovered ineffective assistance of counsel claim. According to Buenrostro, his trial lawyer received a plea offer five months before trial and had Buenrostro accepted that offer, he would have received a maximum sentence of fourteen years. Buenrostro contends that his trial lawyer did not realize that Buenrostro faced the possibility of a life sentence, and the lawyer rejected the offer without informing Buenrostro of the offer. Buenrostro asked the district court to set aside its denial of his original § 2255 motion and to hold an evidentiary hearing on this new claim.
The government moved in the district court to dismiss Buenrostro's motion as, in substance, an unauthorized second or successive § 2255 motion. 28 U.S.C. §§ 2255(h), 2244(b)(3)(A). The district court agreed and dismissed Buenrostro's Rule 60(b) motion for lack of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 149, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam). We affirmed the district court's dismissal. See United States v. Buenrostro, 163 Fed. Appx. 524 (9th Cir. Jan. 17, 2006).
Buenrostro has now filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court, a motion for permission to expand the record, and a motion for release pending review. Additionally, in his motion to expand the record, he requests appointment of counsel. Buenrostro again wishes to raise an ineffective assistance of trial counsel claim based on the failure to communicate the plea offer. He further contends his post-conviction counsel was ineffective because she failed to raise the trial lawyer's failure to communicate the plea offer in the original § 2255 motion.
We grant the motion for permission to expand the record but we deny the application for authorization to file a second or successive motion because Buenrostro has not made the requisite prima facie showing under 28 U.S.C. § 2255.
A second or successive motion must be certified . . . 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 defendant 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.
Buenrostro grounds his second or successive motion in subsection (2), contending that the Supreme Court's recent decisions in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 ...