United States v. Pineda

Full title: UNITED STATES OF AMERICA, Respondent, v. EDUARDO PINEDA, Movant.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Oct 30, 2014

No. 2:97-CR-0039-JAM-CMK (E.D. Cal. Oct. 30, 2014)

Opinion

No. 2:97-CR-0039-JAM-CMK

10-30-2014

UNITED STATES OF AMERICA, Respondent, v. EDUARDO PINEDA, Movant.

CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

FINDINGS AND RECOMMENDATIONS

Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. Pending before the court is respondent's unopposed motion to dismiss (Doc. 124) for lack of jurisdiction.

Movant was convicted on January 21, 1998, of possession of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Movant was sentenced to life in prison on May 14, 1998. On December 26, 2000, movant filed a motion to vacate or set aside the sentence under 28 U.S.C. § 2255. That motion was denied on the merits on November 28, 2001. Movant's request for a certificate of appealability was denied by the Ninth Circuit Court of Appeals on December 22, 2011. Movant filed the instant second § 2255 motion on November 15, 2013.

The court agrees with respondent that the instant petition cannot be entertained because movant has not obtained prior authorization from the Ninth Circuit Court of Appeals. See United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (holding that a federal prisoner is limited to one § 2255 motion); see also Alaimalo v. United States, 645 F.3d 1042, 1054 (9th Cir. 2011) (holding that a second or successive § 2255 motion may not be considered by the district court unless petitioner obtains a certificate from the circuit court authorizing the district court to do so).

Based on the foregoing, the undersigned recommends that respondent's unopposed motion to dismiss (Doc. 124) be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: October 30, 2014

/s/_________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE