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Alejo Cesareo-Ayala v. Linda Sanders

August 24, 2011

ALEJO CESAREO-AYALA, PETITIONER,
v.
LINDA SANDERS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. R. Gary Klausner United States District Judge

MEMORANDUM AND ORDER:

(1) DISMISSING SUCCESSIVE 28 U.S.C. § 2255 MOTION ERRONEOUSLY STYLED AS 28 U.S.C. § 2241 PETITION; AND (2) DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION AND SUMMARY

On August 12, 2011, petitioner Alejo Cesareo-Ayala ("Petitioner"), a federal prisoner*fn1 proceeding pro se, filed a document titled "Petition for 28 U.S.C. § 2241 Pursuant to Habeas Corpus Statutes § 2241-§ 2255" ("Petition"), challenging his criminal conviction and sentence in the U.S. District Court for the District of Kansas. In reality, the Petition is nothing more than a successive motion pursuant to 28 U.S.C. § 2255, which Petitioner is attempting to file in the wake of the District of Kansas' denial of his first § 2255 motion, and the 10th Circuit Court of Appeal's denial of authorization to file a successive § 2255 motion. As such, the Petition must be dismissed without prejudice to Petitioner receiving permission from the 10th Circuit to file a successive § 2255 motion.

II.

PROCEDURAL HISTORY On January 15, 2008, a jury found Petitioner guilty in the District of Kansas on the following counts:

(1) conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine;

(2) possession with intent to distribute 500 grams or more of cocaine; and

(3) distribution of marijuana. (Pet. at 5; see also United States v. Cesareo-Ayala, D. Kan., No. 2:07-cr-20065-JWL-3, Docket No. 136.)

Petitioner appealed, and the 10th Circuit Court of Appeals affirmed his conviction on August 12, 2009. See United States v. Cesareo-Ayala, 576 F.3d 1120, 1130 (10th Cir. 2009).

On March 4, 2010, Petitioner filed a § 2255 motion to vacate, set aside, or correct his federal sentence. (See United States v. Cesareo-Ayala, D. Kan., No. 2:07-cr-20065-JWL-3, Docket No. 175.) On May 10, 2010, the District of Kansas denied the motion. (Id., Docket No. 179.)

On June 23, 2011, Petitioner filed a motion for authorization to file a second or successive § 2255 motion in the 10th Circuit Court of Appeals. (See In re: Alejo Cesareo-Ayala, 10th Cir., No. 11-3178, Docket No. 1.) On July 12, 2011, the 10th Circuit denied the motion. (Id., Docket No. 4.)

This federal Petition ...


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