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United States v. Kennedy

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 27, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL EDWARD KENNEDY, DEFENDANT.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER REJECTING DOCUMENTS ABSENT NINTH CIRCUIT AUTHORIZATION

Michael Edward Kennedy ("Kennedy") is a federal prisoner who has presented for filing a successive 28 U.S.C. § 2255 Motion To Vacate, Set Aside, Or Correct Sentence ("Section 2255 Petition") in his criminal case number 80cr0102-K. According to his Petition, he was convicted on January 15, 1981 and is serving a life sentence. His direct appeal was denied in September 1983. His Writ of Certiorari to the United States Supreme Court was denied in February 1984. As pertinent here, the docket in his criminal case reveals Kennedy filed a 28 U.S.C. § 2255 Motion in this court on October 28, 1996, and again on April 21, 1997. District Judge Judith N. Keep denied both those motions. Dkt Nos. 123, 145. Judge Keep entered an Order on October 2, 1997 denying Kennedy's request for a certificate of appealability and instructing him that should he choose to pursue his action any further, he must first seek a certificate of appealability from the Ninth Circuit. Dkt No. 147. Kennedy appealed (Dkt No. 150), and also petitioned for reconsideration of the order of dismissal (Dkt No. 148). Judge Keep denied his motion for reconsideration by Order entered January 14, 1998. Dkt No. 149.

On September 24, 1998 (filed February 22, 1999), the Ninth Circuit affirmed the district court's denial of Kennedy's FED. R. CRIM. P. ("Rule") 35 "Motion for Modification of Sentence," filed October 26, 1996, on grounds more than sixteen years had passed after sentencing, so the district court lacked jurisdiction to entertain the motion, citing United States v. Stump, 914 F,2d 170, 172 (9th Cir. 1990) (a motion to reduce a lawful sentence or correct a sentence imposed in an illegal manner must be made within 120 days). Dkt No. 154. On April 16, 1999, Judge Keep rejected Kennedy's Motion For Relief From Rule 35 Order on grounds the case was terminated and reconsideration had already been heard. Dkt No. 155.

By Order entered July 14, 1999, the Ninth Circuit responded to Kennedy's petition for authorization to file a second or successive 28 U.S.C. § 2255 motion in district court by denying the motion "without prejudice to filing a new petition that complies with the requirements of Ninth Circuit Rule 22-3," and provided Kennedy with instructions that any such new petition had to be filed in the Ninth Circuit and had to contain a particularized showing enunciated for him in that Order. Dkt No. 156. No further action is reflected in the docket until Kennedy's presentation on March 21, 2007 of a renewed 28 U.S.C. § 2255 motion in this court. This court has rejected that motion in a separate Discrepancy Order. Its presentation in this court is contrary to the instructions from the Ninth Circuit that Kennedy must first obtain leave from the Ninth Circuit. This court lacks jurisdiction to entertain any further requests from Kennedy related to any alleged irregularity in his conviction or sentencing in Case Number 80cr0102-K absent Ninth Circuit authorization.

IT IS HEREBY ORDERED all further attempted filings by Kennedy related to his criminal case will be rejected absent the required Ninth Circuit authorization.

IT IS SO ORDERED.

20070327

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