IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 21, 2009
FERMIN INDA-PARRA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DISMISSING PETITIONER'S MOTION FOR REDUCTION OF SENTENCE PURSUANT TO 28 U.S.C. § 2255 FOR LACK OF JURISDICTION AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On September 27, 2007, Petitioner Fermin Inda-Parra, proceeding in pro per, filed a motion for reduction of sentence pursuant to 28 U.S.C. § 2255. Petitioner contends that he is entitled to a downward departure to his sentence based on his status as a deportable alien.
Petitioner's motion is DISMISSED for lack of jurisdiction. Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to Section 2255 on May 17, 1999. Petitioner's motion was denied by Order filed on May 20, 1999.
Section 2255 provides in pertinent part: "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain" either newly discovered evidence or a new, retroactive rule of constitutional law. Section 2244(b)(3)(A) states: "Before a second or successive application permitted by the section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Without such a certificate of authorization from the Ninth Circuit, this court lacks jurisdiction to consider the merits of petitioner's claims made in the motion filed on September 7, 2007 United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).
For the reasons stated:
1. Petitioner Fermin Inda-Parra's motion for reduction of 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.
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