United States v. Olga Echerivel

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[Unpublished]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 Appx. 628 (8th Cir. 2010) (unpublished per curiam).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-