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United States v. Estrada-Hernandez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
v.
LUIS ENRIQUE ESTRADA-HERNANDEZ, DEFENDANT/PETITIONER.

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

ORDER STRIKING PETITIONER'S SECOND "NOTICE FO APPEAL OF FINAL SENTENCE PURSUANT TO 18 § [sic] 3742"

On April 20, 2009, Luis Enrique Estrada-Hernandez ("Petitioner"), proceeding in pro per, filed a second pleading captioned "Notice of Appeal of Final Sentence Pursuant to 18 § [sic] 3742." Petitioner asserts that he "wishes to appeal the illegal sentence imposed inviolation [sic] of the law and as a result of the incorrect application of the guidelines, pursuant to 18 § [sic] 3742(a)." Petitioner asserts that the Court has jurisdiction pursuant to "§ 3231 and § 3742."

Petitioner's pleading is STRICKEN.

Petitioner was found guilty by jury verdict of conspiracy to manufacture and distribute methamphetamine and of manufacturing methamphetamine and aiding and abetting. Petitioner was sentenced on October 10, 1995 to 290 months incarceration.

Petitioner appealed his conviction and sentence to the Ninth Circuit. The Ninth Circuit affirmed Petitioner's conviction and sentence. See United States v. Magallon, 124 F.3d 214 (9th Cir.1997). Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on March 25, 1998 (Doc. 517). Petitioner's Section 2255 motion was denied by Order filed on September 17, 1998 (Doc. 531). A Certificate of Appealability was denied by the Court on January 4, 1999 (Doc. 543). The Ninth Circuit denied a Certificate of Appealability on March 18, 1999.

Petitioner cannot file an appeal from his conviction and sentence pursuant to 18 U.S.C. § 3742(a). Petitioner appealed his conviction and sentence in 1995; the Ninth Circuit affirmed in 1997.

Petitioner's pleading cannot be construed as a motion to vacate, set aside or correct sentence pursuant to Section 2255. Because Petitioner previously filed a Section 2255 motion, he cannot file a second or successive Section 2255 with this Court motion absent prior authorization by the Ninth Circuit Court of Appeals.

For the reasons stated, Petitioner Luis Enrique Estrada Hernandez's "Notice of Appeal of Final Sentence Pursuant to 18 § 2 [sic] 3742" is STRICKEN.

IT IS SO ORDERED.

20090421

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