United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court is petitioner Nicanor Gonzales's
(“Gonzales”) motion 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.
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. The Court sentenced Gonzales
on April 20, 2017 to 97 months of imprisonment and 5 years of
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. The Court dismissed Gonzales's motion
with prejudice finding that Gonzales's claims were
meritless. Gonzales filed a notice of appeal to the
United States Fifth Circuit Court of Appeals on August 6,
2018,  and this Court denied the certificate of
appealability on October 2, 2018. Gonzales's appeal of the
Court's denial of his § 2255 motion is still pending
before the Fifth Circuit.
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. The letter informed Gonzales that Edwin
Martinez (“Martinez”), a high-level Houston drug
trafficker with whom Gonzales worked,  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. In response to Gonzales's motion,
the Court provided Gonzales with the letter and dismissed the
motion as moot.
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
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.
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.
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. 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
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.Gonzales's