UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
June 11, 2012
CELSO GUERRERO, PETITIONER,
LINDA SANDERS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Hon. Dean D. Pregerson United States District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's "Motion to Set Aside Report and Recomm[en]dation of the United States Magistrate Judge" ("Objections"), and the remaining record, and has made a de novo determination.
Nothing in the Objections refutes the Magistrate Judge's findings that:
(1) the Petition challenges the legality of Petitioner's 1997 conviction and sentence in the Eastern District of California; (2) Petitioner has already filed two motions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255; (3) Petitioner has not received authorization from the Ninth Circuit to file a successive § 2255 motion; and (4) Petitioner fails to meet the "escape hatch" criteria of § 2255(e). (See R&R at 2-4.) Thus, the Petition is an unauthorized successive § 2255 motion, erroneously brought pursuant to 28 U.S.C. § 2241.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action without prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not shown that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. Thus, the Court declines to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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