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United States v. Gonzales

United States District Court, E.D. Louisiana

November 15, 2018

UNITED STATES OF AMERICA
v.
NICANOR GONZALES

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is petitioner Nicanor Gonzales's (“Gonzales”) motion[1] to reopen his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 based on the discovery of new evidence. Gonzales also requests the appointment of counsel. For the following reasons, the motions are denied.

         I.

         On January 21, 2016, Gonzales pled guilty to conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine hydrochloride and one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.[2] The Court sentenced Gonzales on April 20, 2017 to 97 months of imprisonment and 5 years of supervised release.[3]

         On April 30, 2017, Gonzales filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, wherein Gonzales asserted multiple claims of ineffective assistance of counsel.[4] The Court dismissed Gonzales's motion with prejudice finding that Gonzales's claims were meritless.[5] Gonzales filed a notice of appeal to the United States Fifth Circuit Court of Appeals on August 6, 2018, [6] and this Court denied the certificate of appealability on October 2, 2018.[7] Gonzales's appeal of the Court's denial of his § 2255 motion is still pending before the Fifth Circuit.[8]

         On September 6, 2018, Gonzales filed a motion asking this Court to require the U.S. Bureau of Prisons to provide Gonzales with a copy of a letter that he received from the U.S. Department of Justice.[9] The letter informed Gonzales that Edwin Martinez (“Martinez”), a high-level Houston drug trafficker with whom Gonzales worked, [10] admitted that he agreed to false statements contained in the factual basis of his plea agreement, and that Martinez may have provided false testimony regarding Gonzales's involvement in the above-captioned case.[11] In response to Gonzales's motion, the Court provided Gonzales with the letter and dismissed the motion as moot.[12]

         On September 21, 2018, Gonzales filed the present motion to reopen his § 2255 motion based on the discovery of new evidence, that is, the above-mentioned letter from the U.S. Department of Justice, which he asserts supports his prior ineffective assistance of counsel claims and “lends credence to the Movant being actually innocent of the crime for which he now stands wrongfully convicted.”[13]

         The Court lacks jurisdiction to consider Gonzales's motion because (1) Gonzales's first § 2255 motion is on appeal before the Fifth Circuit, and (2) the motion constitutes a second or successive habeas petition that has not been authorized by the Fifth Circuit.

         II.

         First, the Court lacks jurisdiction to consider Gonzales's motion because it is pending before the Fifth Circuit. “The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). “Further, an appeal of a judgment determining the entire action divests the district court of jurisdiction, while that appeal is pending, over any further matters for that action, ‘except in aid of the appeal or to correct clerical errors.'” United States v. Pena, 713 Fed.Appx. 271, 272-73 (5th Cir. 2017) (quoting Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 (5th Cir. 1984)).[14]

         Gonzales's present motion, filed after his notice of appeal, asks the Court to consider new evidence and the merits of his claims on appeal. The Court denied Gonzales's first § 2255 motion and issued a final judgment on July 20, 2018.[15] The Court's judgment determined the entirety of Gonzales's motion and all of the issues that he presented to the Court. Gonzales's notice of appeal as to that judgment is still pending before the Fifth Circuit.[16]

         Gonzales does not assert that his present motion is meant to facilitate his pending appeal; instead, he seeks to reopen the motion on the basis that he has obtained “new evidence supporting his Ineffective Assistance of Counsel claims, ” which evidence proves that he is innocent of the crime for which he was convicted.[17]Gonzales's ...


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