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Raul Amezcua v. United States of America

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


August 24, 2012

RAUL AMEZCUA,
PETITIONER ,
v.
UNITED STATES OF AMERICA,
RESPONDENT .

ORDER ON PETITIONER'S 28 U.S.C. § 2255 PETITIONS AND ORDER ON REQUEST FOR APPOINTMENT OF COUNSEL (Crim. Doc. Nos. 434, 461, 462)

Currently before the Court is Petitioner's petition under 28 U.S.C. § 2255. See Doc. No. 461. However, Petitioner admits that he has previously filed a § 2255 petition that was denied and that a certificate for appealability was also denied. On September 21, 1998, Judge Crocker denied a § 2255 petition by petitioner. See Doc. No. 380. Judge Crocker also denied a Rule 60 motion (which was determined to be a successive § 2255 petition), a motion to reconsider, and a motion for a certificate of appealability, again all in 1998. See Doc. Nos. 391, 392, 396. *fn1

Further, the Ninth Circuit in 2005 denied Petitioner's request to file a successive § 2255 petition. See Ninth Circuit Docket No. 05-71309.

"A petitioner is generally limited to one motion under § 2255, and may not bring a 'second or successive motion' unless it meets the exacting standards of 28 U.S.C. § 2255(h)." United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). That section reads:

A second or successive motion must be certified as provided in section 2244 [28 USC § 2244] by a panel of the appropriate court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). If § 2255(h) applies, but a petitioner has not received permission from the court of appeals to file a successive § 2255 petition, then the district court is without jurisdiction. See Washington, 653 F.3d at 1059.

As discussed above, Petitioner has filed several § 2255 petitions. However, there is no indication that Petitioner has received permission from the Ninth Circuit to file this successive § 2255 petition. Permission from the Ninth Circuit is required before a district court may entertain this petition. See 28 U.S.C. § 2255(h); Washington, 653 F.3d at 1059. Because Petitioner has failed to obtain permission from the Ninth Circuit to file further § 2255 petitions as required by § 2255(h), this Court is without jurisdiction and will dismiss this matter. See Washington, 653 F.3d at 1065.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's § 2255 petition (Crim. Doc. No. 461) is DENIED due to Petitioner's failure to comply with 28 US.C. § 2255(h);

2. Petitioner's request for appointment of counsel (Crim. Doc. No. 462) is DENIED as moot;

3. Because the December 2004 petition (Crim. Doc. No. 434) was denied as shown by Doc. No. 2 in Civil Case No. 1:04-CV-6635 REC, the Clerk shall administratively change the status of Doc. No. 434 to that of a ruled upon motion, and shall also correct the docket to reflect that Doc. No. 434 was filed by LUCIO BETANCOURT, and not by Petitioner Raul Amezcua; and

4. The Clerk shall CLOSE the criminal case (1:93-cr-5046) and civil case (1:12-cv-844) associated with this Petitioner's § 2255 petition.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE


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