IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 4, 2009
UNITED STATES OF AMERICA, RESPONDENT,
DOROTHY HENDERSON, MOVANT.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. On July 1, 2009, Movant filed her second motion (Doc. 169)*fn1 and a copy of her application to for authorization to file a second or successive § 2255 motion (Doc. 170), which was filed in the Ninth Circuit Court of Appeals.
On November 17, 2009, the Ninth Circuit denied her application (Doc. 172).*fn2
Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed, the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. §§ 2244(b)(3), 2255(h). In the absence of proper authorization from the Court of Appeals, the district court lacks jurisdiction to consider a second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam).
Here, Movant was denied authorization to file her current motion. This court therefore has no jurisdiction to consider the motion, and the motion should be denied as filed without proper authorization.
In addition, a review of the docket in this matter reveals an old motion which has not been terminated. Petitioner filed a motion for entry of judgment in June 2005 (Doc. 148) which is still showing as a pending motion. Petitioner was attempting to obtain a ruling on the previous § 2255 motion. That ruling was issued in January 2007 (Doc. 165) rendering the old motion for entry of judgment moot.
Based on the foregoing, the undersigned recommends that:
1. The motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 (Doc. 169) be denied as a second or successive motion filed without proper authorization;
2. The Clerk of the Court be directed to terminate the application for authorization to file a second or successive application for relief (Doc. 170) as a pending motion pursuant to the Ninth Circuit's denial; and
3. The Clerk of the Court be directed to terminate the motion for entry of judgment (Doc. 148) as moot.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).