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BEASLEY v. U.S.

United States District Court, N.D. California


June 6, 2005.

JAMES L. BEASLEY, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

ORDER

On October 4, 2000, petitioner James L. Beasley, Jr. filed what was characterized as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), in which he urged the court to reconsider its May 6, 1999 order denying his motion to vacate his sentence under 28 U.S.C. § 2255 in light of the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). Construing Beasley's Rule 60(b) motion as a section 2255 petition, the court denied the motion on the merits on December 7, 2000. However, the court subsequently discovered that it erred in reaching the merits of the petition because Beasley had failed to apply for and obtain a certificate from the court of appeals entitling him to file a second or successive habeas petition. Accordingly, the court vacated its December 7, 2000 order denying Beasley's second petition and dismissed his claim without prejudice on March 20, 2001.

On August 27, 2004, Beasley filed a motion to reconsider the court's order denying his initial section 2255 petition, citing the Supreme Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). On September 7, 2004, the court stayed proceedings relating to that motion in light of the unresolved constitutional questions raised by the Blakely decision. These questions were addressed by the Supreme Court's subsequent ruling in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). Meanwhile, on March 16, 2005, Beasley requested leave to amend his petition in light of the Ninth Circuit's decision in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), in which the court held that the "new" rule of the Sixth Amendment law announced in Crawford v. Washington, 541 U.S. 36 (2004), applied retroactively on collateral review. See Bockting, 399 F.3d at 1021.

  Unfortunately, Beasley has again failed to seek certain certification to file a second or successive petition from the court of appeals. See 28 U.S.C. §§ 2244, 2255. As the court observed in its March 2001 order dismissing Beasley's second section 2255 motion, it is well-established that a petitioner seeking collateral review of his or her sentence or conviction cannot evade the limitations that Congress has imposed on this court's jurisdiction by styling a successive petition for post-conviction relief as a motion for relief from judgment. See Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc), cert. denied 524 U.S. 965, (U.S. Jul 13, 1998) (No. 98-5203, A-47). The same is true of an untimely motion for leave to amend. See Rodriguez v. United States, 286 F.3d 972, 981 & n. 6 (7th Cir. 2002), cert. denied 537 U.S. 938, (U.S. Oct 07, 2002) (No. 02-6036). Accordingly, this court lacks jurisdiction to entertain Beasley's claims on the merits.

  Based upon the foregoing, the court DENIES Beasley's motion for leave to amend and DENIES his motion for reconsideration. Before Beasley can proceed he must follow the requirements related to successive petitions and first obtain leave to file from the Ninth Circuit Court of Appeals. The instant petition is hereby dismissed without prejudice.

  IT IS SO ORDERED.

20050606

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