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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Hector Parra-Francisco,

Petitioner, 

vs.

United States of America,

Respondent.

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CASE NO. CV-06-136-PHX-FRZ

 CR-01-616-PHX-FRZ

ORDER

Pending before the Court is Petitioner’s January 4, 2006 “Motion for Time Reduction

by an Inmate in Federal Custody, (28 U.S.C. § 2255).” The Court will dismiss the motion

without prejudice because the Court lacks subject matter jurisdiction over this second habeas

petition.

Background

Pursuant to a plea agreement, Petitioner entered a plea of guilty to the Information,

which charged him with entering, attempting to enter, and being found in the United States

after having been previously denied admission, excluded, deported, and removed from the

United States, and not having obtained the express consent of the Attorney General to

reapply for admission to the United States, in violation of 8 U.S.C. § 1326(a) and enhanced

by § 1326(b)(2).

Case 2:01-cr-00616-FRZ Document 55 Filed 01/25/06 Page 1 of 8
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The Court imposed a sentence of thirty months. The Court also placed Petitioner on

supervised release for three years, with the condition that he “shall not commit another

federal, state, or local crime during the term of supervision.” 

On August 15, 2005, Petitioner entered into an agreement with the United States in

which he admitted to violating the terms of his supervised release by committing the offense

of re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to the

agreement, Petitioner waived “any and all motions, defenses, probable cause determinations,

and objections which [he] could assert to the information or indictment, or petition to revoke,

or to the Court’s entry of judgment and imposition of sentence upon [him] providing the

sentence is consistent with [the] agreement.” In addition, Petitioner waived “any right to

collaterally attack [his] conviction and sentence in a habeas petition under 28 U.S.C. § 2255

or motion under any other statute or rule.”

The agreement provided for a sentencing range of 4-27 months, depending on

Petitioner’s criminal history. The Court imposed a sentence of 5 months, to be served

consecutive to his thirty month sentence in 05-CR-830-TUC-FRZ.

After Petitioner was sentenced in this case, Petitioner filed a “Motion for Time

Reduction by an Inmate in Federal Custody, (28 U.S.C. Section 2255)” on October 21, 2005.

On November 1, 2005, the Court issued an Order in which it concluded that Petitioner had

waived in his agreement with the United States his claim for a sentence reduction and that,

alternatively, his claim of an equal protection violation lacked merit under existing Ninth

Circuit case law. The Court denied the § 2255 habeas petition and dismissed the case (CV05-632-TUC-FRZ).

On January 4, 2006, Petitioner filed the current § 2255 habeas petition in which he

seeks a reduction of his sentence because his right to equal protection is violated by the fact

that deportable alien prisoners, unlike their United States citizen counterparts, are ineligible

for a one-year sentence reduction for attending a drug treatment program during incarceration

and for early release to a half-way house. His motion also contains a petition for

Case 2:01-cr-00616-FRZ Document 55 Filed 01/25/06 Page 2 of 8
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commutation of sentence, which is not within this Court’s authority to grant or deny. See

Graham v. Angelone, 73 F. Supp. 2d 629, 630 (E.D. Va.1999).

Discussion

Under 28 U.S.C. §§ 2255 and 2244(b)(3), a petitioner may not file a second or

successive § 2255 habeas petition in the district court unless the petitioner has obtained a

certification from the Ninth Circuit Court of Appeals authorizing the district court to consider

the second habeas petition. 

The Court already rejected Petitioner’s first § 2255 habeas petition. Petitioner’s

current petition, therefore, is his second § 2255 habeas petition and in it Petitioner seeks the

same relief on the same ground he did in his first § 2255 habeas petition. Because Petitioner

has failed to obtain permission from the Ninth Circuit before filing this second § 2255 habeas

petition, the Court lacks subject matter jurisdiction over the second § 2255 habeas petition

and must dismiss it. See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)

(concluding that district court lacked jurisdiction to consider second § 2255 petition when

petitioner had failed to request certification from appellate court prior to filing the second

§ 2255 petition in the district court); United States v. Alvarez-Ramirez, 128 F. Supp. 2d 1265,

1267 (C.D. Cal. 2001) (dismissing second § 2255 petition for lack of subject matter

jurisdiction because petitioner failed to obtain Ninth Circuit certification). The Court,

however, will dismiss the case without prejudice so that Petitioner can seek certification from

the Ninth Circuit Court of Appeals to file a second or successive § 2255 habeas petition.

Pursuant to Ninth Circuit Rule 22-3(a), the Court will direct the Clerk of the Court to

refer Petitioner’s second § 2255 habeas petition to the Ninth Circuit Court of Appeals.

Moreover, as a courtesy to Petitioner, the Court will direct the Clerk of the Court to provide

Petitioner with a form recommended by the Ninth Circuit for filing an Application for Leave

to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C.

§ 2255.

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Conclusion

In light of the foregoing, 

IT IS ORDERED that Petitioner’s January 4, 2006 “Motion for Time Reduction by

an Inmate in Federal Custody, (28 U.S.C. § 2255)” (U.S.D.C. document #53 in CR-01-616-

PHX-FRZ) and this action (CV-06-0136-PHX-FRZ) are DISMISSED WITHOUT

PREJUDICE to allow Petitioner to seek certification from the Ninth Circuit Court of

Appeals to file a second or successive petition.

IT IS FURTHER ORDERED that the Clerk of the Court SHALL SEND a copy of

this Order and Petitioner’s January 4, 2006 “Motion for Time Reduction by an Inmate in

Federal Custody, (28 U.S.C. § 2255)” (U.S.D.C. document #53 in CR-01-616-PHX-FRZ)

to the Ninth Circuit Court of Appeals.

IT IS FURTHER ORDERED that the Clerk of the Court SHALL SERVE a copy

of this Order on Petitioner and SHALL PROVIDE Petitioner with a form recommended

by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or

Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.

IT IS FURTHER ORDERED that the Clerk of the Court SHALL SERVE a copy

of this Order and Petitioner’s January 4, 2006 “Motion for Time Reduction by an Inmate in

Federal Custody, (28 U.S.C. § 2255)” (U.S.D.C. document #53 in CR-01-616-PHX-FRZ)

on Respondent.

DATED this 19th day of January, 2006.

Case 2:01-cr-00616-FRZ Document 55 Filed 01/25/06 Page 4 of 8
Form 12. Application for Leave to File Second or Successive Petition

(New, 7/1/02) Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255

UNITED STATES COURT of APPEALS 

for the NINTH CIRCUIT

95 Seventh Street

San Francisco, California 94103

Application for Leave to File Second or Successive Petition 

Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255

Docket Number ________________________________________________________________ 

(to be provided by court)

Petitioner's name _______________________________________________________________ 

Prisoner registration number 

Address ______________________________________________________________________ 

Instructions - Read Carefully

(1) This application, whether handwritten or typewritten, must be legible and signed by the petitioner under penalty

of perjury. An original and five (5) copies must be provided to the Clerk of the Ninth Circuit. The application

must comply with 9th Circuit Rule 22-3, which is attached to this form.

(2) All questions must be answered concisely. Add separate sheets if necessary. 

(3) The petitioner shall serve a copy of this application and any attachments on respondent and must complete and

file a proof of service with this application. 

(4) The petitioner shall attach to this application copies of the magistrate judge's report and recommendation and

the district court's opinion in any prior federal habeas proceeding under 28 U.S.C. § 2254 or § 2255 or state why

such documents are unavailable to petitioner.

You Must Answer the Following Questions:

(1) What conviction(s) are you challenging?

______________________________________________________________________________

______________________________________________________________________________

Case 2:01-cr-00616-FRZ Document 55 Filed 01/25/06 Page 5 of 8
(2) In what court(s) were you convicted of these crime(s)?

______________________________________________________________________________

______________________________________________________________________________

(3) What was the date of each of your conviction(s) and what is the length of each sentence?

______________________________________________________________________________

______________________________________________________________________________

For questions (4) through (9), provide information separately for each of your previous §§ 2254

or 2255 proceedings. Use additional pages if necessary.

(4) With respect to each conviction and sentence, have you ever filed a petition or motion for habeas

corpus relief in federal court under 28 U.S.C. § 2254 or § 2255?

Yes G No G

(a) In which federal district court did you file a petition or motion?

________________________________________________________________________

(b) What was the docket number? ______________________________________________

(c) On what date did you file the petition/motion? ___________________________________

(5) What grounds were raised in your previous habeas proceeding? 

(list all grounds and issues previously raised in that petition/ motion)

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(6) Did the district court hold an evidentiary hearing? Yes G No G

Case 2:01-cr-00616-FRZ Document 55 Filed 01/25/06 Page 6 of 8
(7) How did the district court rule on your petition/motion? 

G District court dismissed petition/motion? If yes, on what grounds?

__________________________________________________________________

G District court denied petition/motion;

G District court granted relief; 

if yes, on what claims and what was the relief?

__________________________________________________________________

(Attach copies of all reports and orders issued by the district court.) 

(8) On what date did the district court decide your petition/motion?

________________________________________________________________________

(9) Did you file an appeal from that disposition? Yes G No G

(a) What was the docket number of your appeal? __________________________________

(b) How did the court of appeals decide your appeal?_______________________________ 

______________________________________________________________________________

______________________________________________________________________________

(10) State concisely each and every ground or issue you wish to raise in your current petition or

motion for habeas relief. Summarize briefly the facts supporting each ground or issue.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(11) For each ground raised, was it raised in the state courts? If so, what did the state courts rule

and when? 

________________________________________________________________________

(12) For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list

each ground separately)

________________________________________________________________________

________________________________________________________________________

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(13) For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each

ground separately and give case name and citation for each new rule of law)

________________________________________________________________________

________________________________________________________________________

(14) For each ground/issue raised, does this claim rely on newly discovered evidence? What is the

evidence and when did you discover it? Why has this newly discovered evidence not been

previously available to you? (list each ground separately)

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(15) For each ground/issue raised, does the newly discovered evidence establish your innocence? 

How?

________________________________________________________________________

________________________________________________________________________

(16) For each ground/issue raised, does the newly discovered evidence establish a federal

constitutional error? Which provision of the Constitution was violated and how? 

________________________________________________________________________

________________________________________________________________________

(17) Provide any other basis for your application not previously stated. 

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Date: __________________ Signature:_________________________________

Proof of Service on Respondent MUST be Attached.

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