Bazan v. United States of America

OCR transcription for search; preserved printed pages are authoritative

Case 7:25-cv-00523 Document2_ Filed 01/09/26 in TXSD Page1of/7
United States District Court

strict rt ©
tted States District Cou . Southem District of Texas
Uther Distrs* of Texas ,
09 2026 | 24 UNITED STATES DISTRICT COURT January 09, 2026
JAN oy SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
Nathan Ochsner, Clerk MCALLEN DIVISION
CRISTOBAL BAZAN, §
§
Movant, §
§
VS. § CIVIL ACTION NO. 7:25-CV-0523
§ CRIM. ACTION NO. 7:21-CR-0167
UNITED STATES OF AMERICA, §
§
Respondent. §

REPORT AND RECOMMENDATION

Movant CRISTOBAL BAZAN, a federal prisoner appearing pro se, has filed a Motion | |
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody —
(Civ. Dkt. No. 1; Cr. Dkt. No. 60).! Movant challenges his conviction for being a felon in
possession of a firearm under Title 18, United States Code, Section 922(g)(1) and 924(a)(2) on
grounds that the statute infringes on his Second Amendment right to keep and bear arms and that
his conviction was predicated on an unlawful search and seizure in violation of the Fourth
Amendment. (Civ. Dkt. No. 1 at 4-5). This is not the first time that Movant has complained about _ |
the validity of the criminal proceedings. Movant brought a prior unsuccessful challenge pursuant
to § 2255 in Bazan v. United States, Civil Action No. 7:24-CV-0220, which also involved a Second
Amendment claim. Because Movant raises a new constitutional challenge to his criminal
conviction, the pending filing should be construed as a second or successive § 2255 motion (the |

“Second Section 2255 Motion”).?

1 Unless otherwise noted, citations to specific pages in the record refer to the pagination of docket entries-
in the case management/electronic case-file (CM/ECF) system. As used here, “Civ. Dkt.” is a citation to
Civil Action No. 7:25-CV-0523, and “Cr. Dkt.” is a citation to Criminal Action No. 7:21-CR-0167.

2 A district court is not required by Castro v. United States, 540 U.S. 375 (2003) to warn a movant of the
recharacterization of a filing as a second or successive § 2255 motion insofar as Castro only applies to a

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AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 7:25-cv-00523 Document2_ Filed 01/09/26 in TXSD Page 2 of 7

This matter was referred to the Magistrate Judge for report and recommendation pursuant
to 28 U.S.C. § 636(b)(1). Upon review of the record and relevant law, the Magistrate Judge
RECOMMENDS that the Second Section 2255 Motion (Civ. Dkt. No. 1; Cr. Dkt. No. 60) be
DENIED without prejudice and DISMISSED for lack of jurisdiction insofar as Movant has not
obtained approval to file a second or successive motion from the United States Court of Appeals
for the Fifth Circuit. | The Magistrate Judge also RECOMMENDS that a certificate of appealability |
be DENIED.

I. BACKGROUND

Movant was sentenced to a term of 72 months of imprisonment upon his conviction
pursuant to a plea of guilty on the felon-in-possession charge. (Cr. Dkt. No. 32).

Through his first § 2255 motion, Movant contended that his conviction violated his Second

Amendment rights as contemplated in New York State Rifle & Pistol Association, Inc. v. Bruen,

597 U.S. 1 (2022). (Cr. Dkt. No. 45). For reference, through Bruen, the Supreme Court struck 7

down a handgun license law, which required applicants to “demonstrate a special need for self-
protection distinguishable from that of the general community,” on grounds that the law prevented
law-abiding citizens from exercising the right to keep and bear arms in public for self-defense.’
Bruen, 597 U.S. at 70-71. Nevertheless, the Magistrate Judge issued a report and recommendation
for the dismissal of the first § 2255 motion because it was filed past the applicable one-year period
for seeking collateral relief. (Cr. Dkt. No. 48). The report was adopted by the Honorable Ricardo

H. Hinojosa, United States District Judge. (Cr. Dkt. No. 58).

first § 2255 motion. See United States v. Williams, 841 F. App’x 745, 746 (Sth Cir. 2021) (per curiam); see
also United States v. Francis, 2006 WL 3328035, at *2 n.3 (W.D. La. Nov. 15, 2006).

3 In reaching its decision, the Bruen court held that, to regulate firearm-related conduct, the government

must prove the regulation at issue “is part of the historical tradition that delimits the outer bounds of the
right to keep and bear arms.” Bruen, 597 US. at 19.

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Movant declares that he submitted the Second Section 2255 Motion to prison officials for —
mailing on November 7, 2025. (Civ. Dkt. No. 1 at 12). For purposes of his Second Amendment
claim, Movant offers that “[nJowhere in the Constitution does it say [that] everyone except

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convicted felons can ‘keep and bear arms[.]’” (/d. at 4). The general contours of this claim are
like that of Movant’s Bruen-based claim from the first § 2255 motion. (See Cr. Dkt. No. 48 at 3-
4). In terms of his Fourth Amendment challenge, Movant claims that the firearm underlying his
felon-in-possession conviction was the fruit of an unlawful search and seizure associated with a
traffic stop. (Civ. Dkt. No. 1 at 5).
II. LEGAL STANDARD

Where a federal prisoner who previously sought collateral review files a subsequent motion
for post-conviction relief, the first task is to determine whether the motion is properly brought —
under the ascribed label, or whether it is a disguised attempt to file an unauthorized second or
successive § 2255 motion. See United States v. Deem, 2022 WL 1040312, at *1 (W.D. La. Apr.
6, 2022); see also United States v. Francis, 2006 WL 3328035, at *2 (W.D. La. Nov. 15, 2006).
A subsequent § 2255 motion is considered second or successive where it either: (i) raises a claim
challenging the movant’s conviction or sentence that was or could have been raised in an earlier —
motion for collateral relief; or (ii) otherwise constitutes an abuse of the writ. United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (Sth Cir. 2000). This threshold determination is important
because the filing of a second or successive § 2255 motion must first be approved by a panel of
the appropriate court of appeals. See 28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)(3)(A).
Absent prior authorization by the appeals court, a district court lacks jurisdiction to entertain a

second or successive motion. United States v. Williams, 841 F. App’x 745, 746 (Sth Cir. 2021)

(per curiam) (citing United States v. Key, 205 F.3d 773, 774 (Sth Cir. 2000)).

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In dealing with an unauthorized successive § 2255 motion, a district court may either deny
it or transfer the motion to the appeals court pursuant to 28 U.S.C. § 1631. Houston v. United
States, 2016 WL 8732564, at *2 (N.D. Tex. Nov. 28, 2016) (collecting cases), report and
recommendation adopted, 2016 WL 8730528 (N.D. Tex. Dec. 16, 2016). For reference, § 1631
contemplates the transfer of an action or appeal for “want of jurisdiction” based on a finding that
such transfer would be in the “interest of justice.” 28 U.S.C. § 1631. Some district courts have
deemed that it is not in the interest of justice to order a transfer, and thus that an unauthorized
successive § 2255 motion should be dismissed without prejudice for lack of jurisdiction, where
the motion fails to meet the certification requirements of § 2255(h) or is otherwise meritless. See,
e.g., United States v. Deem, 2022 WL 1040312, at *1 (W.D. La. Apr. 6, 2022).

Section 2255(h) limits certification to motions that are based on either of the following: (i)
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 the movant guilty of the offense; or (ii) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
See 28 U.S.C. § 2255(h).

Il. ANALYSIS

Here, the Second Section 2255 Motion clearly raises a successive challenge to Movant’s
felon-in-possession conviction. Movant’s instant Second Amendment claim is essentially the |
same as the Second Amendment claim raised through the first § 2255 motion, and Movant
otherwise fails to explain why he could not have previously raised his Fourth Amendment claim.

That said, there is no indication that Movant sought and was granted approval by the Fifth Circuit

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Case 7:25-cv-00523 Document2_ Filed 01/09/26 in TXSD Page5of7

(

to file what would constitute a second or successive § 2255 motion, and thus the district court is
without jurisdiction to consider the matter unless, and until, Movant obtains such approval.

Because it would fail to meet the applicable certification requirements, the Second Section
2255 Motion should be summarily denied and dismissed without prejudice. Movant does not offer _:
any newly discovered evidence. Nor does he refer to any recent case law announcing a new rule
of constitutional law as the basis for his claims. See United States v. Washington, 2025 WL 51577,
at *3 (W.D. La. Jan. 8, 2025) (collecting cases for the proposition that Bruen has not been made
retroactively applicable on collateral review); see also United States v. Dickerson, 2025 WL
3269945, at *2 (E.D. Va. Nov. 24, 2025).

Otherwise, Movant’s claims would fail on procedural grounds. As for the Second
Amendment claim, even assuming Bruen’s retroactivity, the decision was issued well over one .
year before Movant filed for collateral review, thus implicating the limitations bar. See Rangel-
Ramirez v. United States, 2024 WL 1543764, at *11 (N.D. Tex. Apr. 9, 2024). Moreover,
substantive Fourth Amendment claims are not generally cognizable on collateral review. See
United States v. Ishmael, 343 F.3d 741, 742 (Sth Cir. 2003) (citing Stone v. Powell, 428 U.S. 465
(1976)), cert. denied, 540 U.S. 1204 (2004).

' IV. CONCLUSION
Recommended Disposition

For these reasons, the Magistrate Judge RECOMMENDS that the Second Section 2255 .

Motion (Civ. Dkt. No. 1; Cr. Dkt. No. 60) be DENIED without prejudice and DISMISSED for _

lack of jurisdiction.

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Case 7:25-cv-00523 Document2_ Filed 01/09/26 in TXSD Page 6 of 7

Certificate of Appealability

The Magistrate Judge must also address the matter of the issuance of a certificate of
appealability (“COA”). See, e.g., Muyaba v. United States, 2014 WL 5150537, at *3 (N.D. Tex.
Oct. 14, 2014). A movant may not appeal the final order of a collateral proceeding “unless a circuit
justice or judge issues a [COA].” 28 U.S.C. § 2253(c)(1). Rule 11 of the Rules Governing Section
2255 Proceedings for the United States District Courts instructs that the District Court “must issue 7
or deny a [COA] when it enters a final order adverse to the applicant.” A movant is entitled to a
COA when he shows that a reasonable jurist would find it 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); 28 U.S.C. § 2253(c). Having
concluded that Movant fails to meet this threshold, the Magistrate Judge RECOMMENDS that the
District Court deny a COA.

Notice to Parties

Within fourteen (14) days after being served a copy of this report, a party may serve and
file specific, written objections to the proposed recommendations. 28 U.S.C. § 636(b)(1)(C); Fed.
R. Civ. P. 72(b). Failure to file written objections within fourteen (14) days after service shall bar
an aggrieved party from de novo review by the District Judge on an issue covered in this report
and from appellate review of factual findings accepted or adopted by the District Judge, except on 7

grounds of clear error or manifest injustice.

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Directive to Clerk of Court
The Clerk of Court is DIRECTED to forward a copy of this report to Movant by any
receipted means.

DONE at McAllen, Texas this 9th day of January 2026.

07 A

J. SCOTPHACKER ee

ited’States Magistrate Judge

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