UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 9, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
RAFAEL AYALA-MENDEZ, DEFENDANT.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING MOTION TO CORRECT AND MODIFY; DENYING CERTIFICATE OF APPEALABILITY
Defendant Rafael Ayala-Mendez has filed a third motion asking the court to modify and reduce his June 23, 1997 sentence following his conviction for one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Defendant files his motion under the authority of 18 U.S.C. § 3582(c)(2), which permits a defendant to seek a reduction of sentence where there has been a change in the sentencing guidelines. However, defendant does not point to any change in the sentencing guidelines; instead, he once again attacks the substance of the original sentence. Thus, the Court finds defendant's motion is properly characterized as a motion under 28 U.S.C. § 2255.
Because defendant has now filed two prior motions under § 2255, he must first get permission from the Ninth Circuit Court of Appeals if he wishes to proceed. 28 U.S.C. § 2255(h); United States v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009) (district court lacks jurisdiction to consider second or success motion under § 2255 unless defendant first receives authorization from the Court of Appeals. Therefore, the Court DENIES defendant's current motion and also DENIES a certificate of appealability. The Clerk is directed to close this case. The Clerk is further directed to accept no further filings from defendant.
IT IS SO ORDERED.
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