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Cauton v. United States

August 1, 2008

FLORO CAUTON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DISMISSING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 FOR LACK OF JURISDICTION AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT

On March 3, 2005, Petitioner Floro Cauton filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that his sentence is unconstitutional in light of Booker v. United States, 543 U.S. 220 (2005).

Petitioner's motion is DISMISSED for lack of jurisdiction. Petitioner previously filed a Section 2255 motion, which was denied by Memorandum Decision and Order filed on June 22, 2000. Petitioner's present motion raises a new claim for relief and must be construed as a second or successive motions pursuant to Section 2255 governed by 28 U.S.C. § 2244. Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.), cert. denied, 524 U.S. 965 (1998). Consequently, this court lacks jurisdiction to consider the merits of these motions absent authorization from the Ninth Circuit Court of Appeals. United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998). For the reasons stated:

1. Petitioner Floro Cauton's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is DISMISSED FOR LACK OF JURISDICTION.

2. The Clerk of the Court is directed to enter JUDGMENT FOR RESPONDENT.

IT IS SO ORDERED.

20080801

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