United States District Court, S.D. California
ORDER REFERRING SUCCESSIVE 28 U.S.C. § 2255
PETITION TO NINTH CIRCUIT [CRIM. CASE, ECF
NOS. 263, 265]
Honorable Barry Ted Moskcwitz, United States District Judge.
the Court are Defendant Travis Chelberg's Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255 (the “§ 2255 Motion”) and motion to
supplement the § 2255 Motion (the “Motion to
Supplement”). (Crim. Case, ECF Nos. 263, 265.) As
previously explained to Defendant, however, “this Court
lacks jurisdiction over a second or successive § 2255
motion until: (1) Defendant moves in the appropriate court of
appeals for an order authorizing this Court to consider such
petition; and (2) the appropriate court of appeals grants
such application.” (Crim. Case, ECF No. 260, at 2
(citing United States v. Washington, 653 F.3d 1057,
1065 (9th Cir. 2011); see also Crim. Case, ECF No.
197 (Order denying Defendant's original § 2255
motion); Crim. Case, ECF No. 230 (Ninth Circuit's Mandate
on Defendant's original § 2255 motion).) Indeed,
“[a]n applicant seeking authorization to file a second
or successive 28 U.S.C. § 2254 petition or 28 U.S.C.
§ 2255 motion in the district court must file an
application in the court of appeals demonstrating entitlement
to such leave under sections 2254 or 2255.” 9th Cir. R.
22-3(a); see also 28 U.S.C. § 2244(b)(3)(A); 28
U.S.C. § 2255(h))); Rules Governing Section 2255
Proceedings for the United States District Courts, Rule 9
(“Before presenting a second or successive motion, the
moving party must obtain an order from the appropriate court
of appeals authorizing the district court to consider the
motion, as required by 28 U.S.C. § 2255, para.
8.”). Because Defendant fails to demonstrate that he
has obtained the Ninth Circuit's authorization to file
the § 2255 Motion in this Court, this Court presently
lacks jurisdiction over the § 2255 Motion. Because the
Court lacks jurisdiction over the § 2255 Motion, it also
lacks jurisdiction to consider subordinate motions concerning
the § 2255 Motion, including the Motion to Supplement.
See, e.g., United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000) (“When a statute removes jurisdiction
over a particular type of case from the district courts, it
must by necessity also remove from the district courts'
consideration motions for the appointment of counsel to file
the particular claims over which the district courts lack
jurisdiction.”). Although the Court is authorized to
dismiss without prejudice the § 2255 Motion and Motion
to Supplement for lack of jurisdiction, the Court elects
instead to refer these motions to the Ninth Circuit for
resolution because it has already referred prior related
motions to the Ninth Circuit for resolution. (See
Crim. Case, ECF No. 260.) Accordingly, based upon the
foregoing, the Court REFERS the § 2255
Motion (Crim. Case, ECF No. 263) and the Motion to Supplement
(Crim. Case, ECF No. 265) to the Ninth Circuit for
IS SO ORDERED.
 On September 26, 2019, the Court
received Defendant's (i) Motion for Extension of Time to
File His Motion to Vacate, Set Aside, or Correct Sentence,
Pursuant to 28 U.S.C. 2255 Second or Successive Motion (the
“Motion for Extension”); (ii) Motion for
Appointment of Counsel 18 U.S.C. 3006A (the “Motion to
Appoint Counsel”); and (iii) Motion for Permission from
the District Court to File a 28 U.S.C. 2255 Motion in the
U.S. District Court (the “Motion for Permission”,
and together with the Motion for Extension and Motion to
Appoint Counsel, the “Prior Motions”). (Crim.
Case, ECF No. 253.) In the Prior Motions, Defendant announced
his intentions to subsequently file a successive § 2255
motion. The instant § 2255 Motion appears to be the
successive § 2255 motion foretold by the Prior Motions.
Because the Court lacked jurisdiction over any successive
§ 2255 motion that had not received authorization from
the Ninth Circuit, the Court referred the Prior Motions to
the Ninth Circuit for resolution on October 7, 2019. (Crim.
Case, ECF No. 260.)
 “If an application for
authorization to file a second or successive section 2254
petition or section 2255 motion is mistakenly submitted to
the district court, the district court shall refer it to the
court of appeals.” 9th Cir. R. 22-3(a); see
also 9th Cir. R. 22-3, Cir. Adv. Commit. N. (“The
district court is required to transfer mistakenly filed
applications for authorization to file a second or successive
section 2254 petition or 2255 motion. If an applicant files a
document that appears to be an unauthorized section 2254
petition or 2255 motion and facially alleges a claim based on
a new rule of constitutional law or newly discovered evidence
of actual innocence, the district court may transfer the
filing to the court of appeals in the interests of justice
or, in the alternative, the district court may dismiss the
filing without prejudice to the applicant seeking
authorization from the court of appeals on Ninth Circuit Form
12. The rule requires ...