IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TJNITED STATES OF AMERICA

VS.

MARGARITO CHAVEZ-QUIROZ

Defendant.

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FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Margarito Chavez-Quiroz, a federal prisoner, has filed a pleading entitled "Motion

for De Novo Trial." For the reasonstated herein, the pleading should be treated as a motion to

correct, vacate, or set aside sentence and dismissed as successive.

I.

A jury convicted defendant of illegal reentry after deportation in violation of 8 U'S'C' $

1326(a) &, (b)(2), Punishment was assessed at108 months confinement, followed by supervised

release for a period of three years. His conviction and sentence were affirmed on direct appeal'

United States v. Chavez-Quiroz,l42 Fed.Appx. 806, 2005 WL 1792846 (5th Cir' Jul. 28, 2005)'

cert. denied,l26 S.Ct. I I l6 (2006). Defendant also filed a motion for post-conviction relief under

28U.S.C.52255. Themotionwasdenied. UnitedStatesv.Chavez-Quiroz,No.3-06-CV-1066-M,

2006WL 3487012 (N.D. Tex. Dec. 4,2006), COA denied, No. 06-1 1338 (5th Cir. Dec. I 1,2007)'

Undeterred, defendant now seeks a new trial based on recently discovered evidence that his mother

was a naturalized citizen, not a citizen by birth'r

' The dispositive issue at trial was whether defendant's mother, who was

citizenship of her father, had always retained her citizenship, or whether she

a United States citizen by virtue of the

lost her citizenship and later became a

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u.

The court initially observes that a federal prisoner may challenge his conviction and sentence

only in a section 2255 motion. See, e.g. United States v. Rich,141 F.3d 550, 551 (5th Cir. 1998),

cert. denied,l l9 S.Ct. I 156 ( 1999) (motions attacking federal convictions on constitutional grounds

must be treated as section 2255 motion). However, defendant previously filed a section 2255

motion. In order to file a second or successive motion for post-conviction relief, defendant must

show that the successive motion is based on:

(l) 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 [him] guilty of the offense; or

(2) a new rule of constitutionalaw, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable.

28 U.S.C. $ 2255(h). That determination must be made by a three-judge panel of the court of

appeals before defendant files his motion in district court. Id $$ 2255(h) &2244(b)(3)' The Fifth

Circuit has not issued an order authorizing the district court to consider this successive motion'

Defendant must obtain such an order before another motion for post-conviction relief is filed.

RECOMMENDATION

Defendant's Motion for De Novo Trial [Doc. #1 15] should be treated as a motion to correct,

vacate, or set aside sentence and dismissed without prejudice pending authorization from the court

of appeals to file a successive motion in district court.

naturalized citizen by taking an oath of allegiance. If defendant's mother was a naturalized citizen and not a citizen by

birth. defendant would be deemed a United States citizen and could not be prosecuted for illegal reentry after deportation.

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A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party who objects to any part of this report and recommendation must file

specificwrittenobjectionswithin l4daysafterbeingservedwitha copy. See 28U.S.C. $ 636(bXl);

Fno. R. Crv. P. 72(b). In order to be specific, an objection must identifr the specific finding or

recommendation to which objection is made, state the basis for the objection, and speciff the place

in the magistrate judge's report and recommendation where the disputed determination is found' An

objection that merely incorporates by reference or refers to the briefing before the magistrate judge

is not specific. Failure to file specific written objections will barthe aggrieved party from appealing

the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the

district court, exceptupon grounds ofplain error . See Douglass v. United Services Automobile Ass'n,

79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: December 3, 2009.

L.4N

S]'ATES MAGISTRATE J UDGE

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