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