United States v. Cordova-Ordaz , 637 F. App'x 523 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 3, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-2175
(D.C. No. 2:15-CV-00805-RB-SCY and
JOEL CORDOVA-ORDAZ, 2:14-CR-03440-RB-1)
(D. N. Mex.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Joel Cordova-Ordaz, a federal prisoner proceeding pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B)
(requiring a COA to appeal an order denying a § 2255 petition). Mr. Cordova-Ordaz also
* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Cordova-Ordaz is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se
litigant’s] arguments liberally; this rule of liberal construction stops, however, at the point
at which we begin to serve as his advocate.”).
requests leave to proceed in forma pauperis. Exercising jurisdiction under 28 U.S.C.
§ 1291, we deny both requests and dismiss this matter.
I. BACKGROUND
In April 2010, Mr. Cordova-Ordaz pled guilty to possession with intent to
distribute a quantity of cocaine greater than 500 grams in violation of 21 U.S.C. § 841 in
the Western District of Texas. He was sentenced to 18 months in prison followed by four
years of supervised release.
In October 2014, the court transferred jurisdiction of Mr. Cordova-Ordaz’s term of
supervised release to the District of New Mexico. In March 2015, the district court in
New Mexico revoked Mr. Cordova-Ordaz’s supervised release and sentenced him to four
months in prison to run concurrently to another sentence imposed in a separate criminal
case in the District of New Mexico.
In September 2015, Mr. Cordova-Ordaz filed a § 2255 motion in the District of
New Mexico, challenging his conviction and sentence imposed in the Western District of
Texas. The district court denied his motion, concluding it lacked jurisdiction under
§ 2255(a).
II. DISCUSSION
When a district court dismisses a § 2255 motion on procedural grounds, we will
issue a COA only if the movant shows it is “debatable whether the petition states a valid
claim of the denial of a constitutional right and . . . whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the
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case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Id.Section 2255(a) permits a prisoner in custody to “move the court which imposed
the sentence to vacate, set aside or correct the sentence.” Any other district court lacks
jurisdiction. United States v. Condit, 621 F.2d 1096, 1097 (10th Cir. 1980) (“Jurisdiction
lies only in ‘the court which imposed the sentence.’” (quoting § 2255(a))).
When a prisoner was convicted and sentenced in one court but then transferred to
the supervisory control of a second court, only the first court has jurisdiction over a
§ 2255 motion attacking the underlying conviction and sentence. See id. (finding that
after a federal court in Oklahoma convicted and sentenced a prisoner and transferred
supervisory control to a federal court in California, the Oklahoma court had exclusive
jurisdiction over a § 2255 motion challenging the underlying proceedings in Oklahoma).
As we explained in Condit, the “practical justifications for [this] result are strong.”
Id. The first court more likely has “personal familiarity with the case,” and the “potential
witnesses [likely] reside” near it. Id. at 1098 n.3 (quotations omitted). Moreover, “[i]f
other circuits were to become the situses for routine collateral attacks on the procedures
followed by district courts of the [circuit where the first court is located], there would be
a substantial danger of inconsistent, even contradictory, decisions.” Id. at 1098.
The district court’s ruling is not debatable under Condit.
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III. CONCLUSION
For the foregoing reasons, we deny a COA and dismiss this matter. We also deny
Mr. Cordova-Ordaz’s request to proceed in forma pauperis.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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