F I L E D
United States Court of Appeals
Tenth Circuit
DEC 24 1997
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-3102
JESUS AVILA-AVILA, a.k.a. Jesus Avila,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 93-CR-10073-02-B)
Submitted on the briefs:*
Ernest H. Moulos, Wichita, Kansas, for Defendant-Appellant.
Jackie N. Williams, United States Attorney, and Lanny D. Welch, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff-Appellee.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is submitted
without oral argument.
Before ANDERSON, TACHA, and EBEL, Circuit Judges.
PER CURIAM.
Defendant Jesus Avila appeals from the district court’s February 21, 1997 Order
denying his motion under 28 U.S.C. § 2255 as “a second motion, as untimely under 28
U.S.C. § 2255 as amended by [the Antiterrorism and Effective Death Penalty Act of 1996,]
and as completely without merit.”
In 1994, Defendant Avila entered a conditional guilty plea to one count of possession
with intent to sell heroin and one count of illegal reentry of a deported alien. He was
sentenced to 188 months followed by eight years of supervised release. He appealed the
denial of his motion to suppress. In an unpublished opinion, this court affirmed the district
court. United States v. Avila, No. 94-3273, 1995 WL 238578 (10th Cir. Apr. 18, 1995), cert.
denied, 116 S.Ct. 233 (1995).
In May 1996, Avila filed his first motion under 28 U.S.C. § 2255 in the Western
District of Missouri. In August 1996, the motion was transferred to the District of Kansas.
In this motion, he claimed the district court improperly calculated the amount of drugs upon
which his sentence was based. The motion was denied. United States v. Avila, No. 93-CR-
10073-02 (D. Kan. Dec. 3, 1996)(unpublished). No appeal was taken.
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In February 1997, he filed his second motion under 28 U.S.C. § 2255, claiming his
plea was involuntary based on ineffective assistance of counsel. The motion was denied.
United States v. Avila, No. 93-CR-10073-02 (D. Kan. Feb. 21, 1997)(unpublished). This
appeal ensued.
The § 2255 motion filed in February 1997 was Defendant Avila’s second motion for
purposes of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Because it was
filed several months after the April 24, 1996 effective date for the AEDPA, Avila was
required to comply with the Act’s relevant provisions by obtaining prior authorization from
this court before filing it. He failed to do. Thus, the district court lacked jurisdiction to
decide the second § 2255, and the February 21, 1997 Order disposing of this unauthorized
motion must be vacated. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997).
However, we will construe Defendant Avila’s notice of appeal and appellate opening
brief as an implied application for leave to file a second § 2255 in the district court. See
Pease, 115 F.3d at 764.
In the implied application, Avila contends his plea was involuntary based on
ineffective assistance of counsel. He argues that he was coerced by his court-appointed
counsel into entering a guilty plea “because of the fear that a life sentence would be
imposed,” see appellate opening brief at 3, that he would not have entered a plea if properly
advised of the sentence that would be imposed under the guidelines, id. at 6, and that this
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claim could not have been discovered “through the exercise of due diligence” until the
transcripts of the plea and sentencing hearings “became available for appellate purposes,”
id. at 2.
We have thoroughly reviewed the implied application and conclude Defendant Avila
has failed to make a prima facie showing that satisfies the AEDPA’s criteria. See 28 U.S.C.
§ 2244(b)(3)(C). His claim does not rely on newly discovered evidence that would be
sufficient to establish by clear and convincing evidence that no reasonable factfinder would
have found him guilty of the criminal offenses, 28 U.S.C. § 2255(1), and does not rely on a
new rule of constitutional law made retroactive to cases on collateral review by the Supreme
Court, § 2255(2). Moreover, Avila could have raised this claim in his first § 2255.
Accordingly, the district court’s February 21, 1997 Order disposing of Defendant
Avila’s unauthorized second motion under 28 U.S.C. § 2255 is VACATED, and Defendant’s
implied application for leave to file a second § 2255 in the district court is DENIED.
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