United States v. Olga Echerivel, No. 12-2964 (8th Cir. 2013)
Annotate this CaseCourt Description: Prisoner case - Habeas. District court properly dismissed the petition as an unauthorized successive petition; authorization for the filing of a new petition is not warranted as neither of the case relied on - Missouri v. Frye and Lafler v. Cooper - announced new rules of constitutional law. [ April 01, 2013
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-2964 ___________________________ United States of America lllllllllllllllllllll Appellee v. Olga Echerivel lllllllllllllllllllll Appellant ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: March 21, 2013 Filed: April 2, 2013 [Unpublished] ____________ Before BYE, ARNOLD, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Olga Echerivel is serving a 130-month sentence imposed after a jury found her guilty of conspiring to distribute methamphetamine. See United States v. Echerivel, 381 Fed. Appx. 628 (8th Cir. 2010) (unpublished per curiam). She filed a 28 U.S.C. § 2255 motion claiming she was entitled to relief based on retroactive application of the Supreme Court s recent decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), in which the Court acknowledged that defendants have a constitutional right to effective assistance of counsel that extends to the plea-bargaining process. Because Ms. Echerivel previously filed a section 2255 motion, the district court1 properly dismissed her motion as successive and filed without authorization. See 28 U.S.C. § 2255(h) (request to file successive § 2255 motion must be certified as provided in 28 U.S.C. § 2244); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (district court should dismiss unauthorized successive § 2255 motion or, in its discretion, transfer motion to court of appeals). We further conclude that authorization is not warranted, as neither of the recent Supreme Court cases cited by Ms. Echerivel announced a new rule of constitutional law. See Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); see also 28 U.S.C. § 2255(h)(2) (court of appeals may authorize successive motion if claim relies on new rule of constitutional law, made retroactive to cases on collateral review by Supreme Court, that was previously unavailable). Accordingly, we affirm the judgment, and we grant counsel s motion to withdraw. ______________________________ 1 The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska. -2-
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