United States District Court, N.D. California, San Jose Division
ORDER DISMISSING SECOND § 2255 MOTION TO SET
ASIDE, CORRECT, OR VACATE SENTENCE RE: DKT. NO. 1
H. KOH United States District Judge
18, 2016, Petitioner Ricardo Ramirez-Ramirez
("Petitioner"), proceeding pro se, filed a
motion pursuant to 28 U.S.C. § 2255, which argues that
his sentence should be recalculated in light of the
California Superior Court's December 2, 2015 decision to
reduce Petitioner's prior felony conviction to a
misdemeanor. ECF No. 1 ("Petition") at 2.
the second § 2255 motion that Petitioner has filed. On
July 17, 2013, Petitioner was sentenced to 47 months of
imprisonment. On September 26, 2014, Petitioner filed his
first § 2255 motion, which contended that the Court
erred "by failing to consider and explain why a term of
supervision [sic] release was warranted in light of U.S.S.G.
§ 5D1.1." United States of America v.
Ramirez-Ramirez, No. 10-CR-0897, ECF No. 36 at 2. After
receiving briefing from the parties, the Court denied this
motion with prejudice on April 6, 2015. United States of
America v. Ramirez-Ramirez, No. 10-CR-0897, ECF No. 49
("First Habeas Order").
Ninth Circuit has held that "[a] habeas petition is
second or successive . . . if it raises claims that were or
could have been adjudicated on the merits." McNabb
v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (per
curiam). "A disposition is ‘on the merits' if
the district court either considers and rejects the claims or
determines that the underlying claim will not be considered
by a federal court." Id.
denying Petitioner's first habeas petition, the Court
noted that Petitioner accepted a plea agreement which
included a provision stating that "I agree to waive any
right I may have to file any collateral attack on my
conviction or sentence, including a petition under 28 U.S.C.
§ 2255 or 28 U.S.C. § 2241, except that I reserve
my right to claim that my counsel was ineffective in
connection with the negotiation of this Agreement or the
entry of my guilty plea." First Habeas Order at 2. As
the Court further observed, "[a] defendant may expressly
waive the statutory right to bring a Section 2255 motion
challenging [his] conviction or sentence." Id.
at 7. "Two claims that cannot be waived, however, are
that the waiver itself was involuntary or that ineffective
assistance of counsel rendered the waiver involuntary."
Id. Petitioner's first habeas petition, however,
did not assert ineffective assistance of counsel and did not
challenge the voluntariness of his plea waiver. Thus,
Petitioner had, pursuant to his plea waiver, "knowingly
and voluntarily waived the right to collaterally attack his
sentence." Id. at 8.
instant Petition also does not assert ineffective assistance
of counsel and does not challenge the voluntariness of
Petitioner's plea waiver. Instead, the crux of the
instant Petition is that the Court should recalculate
Petitioner's sentence in light of the California Superior
Court's decision to reduce Petitioner's prior felony
conviction to a misdemeanor. The instant Petition therefore
raises a type of claim that was already considered and
rejected on the merits by this Court, and the instant
Petition thus constitutes a second or successive habeas
petition. See McNabb, 576 F.3d at 1029 (finding
habeas petition to be second or successive because, as in
first habeas petition, second petition presented claims that
second or successive habeas petitions, the Antiterrorism and
Effective Death Penalty Act ("AEDPA") provides
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 movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). In interpreting this AEDPA
provision, the U.S. Supreme Court has held that district
courts are "without jurisdiction to entertain"
petitions where the petitioner neither seeks nor receives
prior authorization from the appropriate court of appeals to
file the second or successive petition. Burton v.
Stewart,549 U.S. 147, 157 (2007). Petitioner has not
sought, and the Ninth Circuit has not issued, a certificate
authorizing Petitioner to file a successive § 2255
motion. Accordingly, the Court DISMISSES the Petition. In
addition, no certificate of appealability shall issue, as
Petitioner has ...