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Olguin v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 8, 2008

SALVADOR OLGUIN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

On January 18, 2006, Petitioner Salvador Olguin ("Petitioner"), a federal prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255. [Doc. No. 136.] On July 14, 2007, this Court issued an Order Denying Petitioner's Request for a Writ of Habeas Corpus. [Doc. No. 143.]

Meanwhile, on July 9, 2007, Petitioner filed an application with the Ninth Circuit for authorization to file a second or successive 28 U.S.C. § 2255 motion. On September 12, 2007, the Ninth Circuit denied the application and ordered that "[n]o petition for rehearing or motion for reconsideration shall be filed or entertained in this case." [Doc. No. 147.]

On November 9, 2007, Petitioner filed a "Memorandum Of Law In Support Of Petition Pursuant To 'Title 18, United States Code, Section § 3582(c)(2)' and 'United States Sentencing Guidelines §§§ 1B1.10, 2D1.1(c), 4A1, 2(c)' For Re-Sentencing As To The Intervening Change 'In Any Illicit Drug' 'Methamphetamine, Marijuana, Herion [sic], Powder Cocaine' and 'Criminal History Category and Points Guideline.'" [Doc. No. 151.] Because the motion challenges Petitioner's sentence and was filed in Petitioner's habeas case, the Court construes the motion as another Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255.

In light of the Ninth Circuit's September 12, 2007 order, this Court cannot rule on the merits of Petitioner's claim. The Petition [Doc. No. 151] is therefore DENIED and the Clerk of the Court shall close the district court file.*fn1

IT IS SO ORDERED.


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