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United States v. Pineda

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


September 22, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
EDUARDO PINEDA, MOVANT.

The opinion of the court was delivered by: John A. Mendez United States District Judge

Ninth Cir. No. 10-16379

ORDER

Movant, a federal prisoner proceeding pro se, brought a motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. That motion was denied on November 28, 2001. Movant filed a notice of appeal on January 30, 2002, and, on February 5, 2002, the court granted a certificate of appealability as to one issue (see Doc. 86). The appeal was assigned docket number 02-15325 in the Ninth Circuit Court of Appeals. On or about September 25, 2002, the Ninth Circuit affirmed this court's denial of movant's § 2255 motion (see Doc. 93). On August 7, 2006, this court denied movant's motion to reopen his § 2255 motion. On April 26, 2010, movant sought reconsideration of the court's August 7, 2006, order. That motion was denied by minute order issued on April 28, 2010. Movant filed a notice of appeal from the April 28, 2010, minute order on May 26, 2010, and the matter was processed to the Ninth Circuit. The Ninth Circuit has now remanded the matter back to this court to either issue or decline to issue a certificate of appealability as to movant's second appeal. See United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997).

Before movant can appeal the May 26, 2010, decision, a certificate of appealability must issue under 28 U.S.C. § 2253(c). See Fed. R. App. P. 22(b); see also 28 U.S.C. § 2255. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). Movant's initial motion to reopen his § 2255 motion was denied because it appeared that movant was impermissibly attempting to circumvent the requirement that a second or successive § 2255motion to pre-authorized by the Ninth Circuit. Movant's motion to reconsideration of that denial was filed almost four years after the motion to reopen was denied and, as such, was untimely. Given this history, the court finds that movant has not made a substantial showing of the denial of a constitutional right in connection with his appeal from the court's denial of his motion for reconsideration.

Accordingly, IT IS HEREBY ORDERED that:

1. The court declines to issue a certificate of appealability; and

2. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit Court of Appeals.

20100922

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