Filed: Jan. 05, 2015
Latest Update: Jan. 05, 2015
Summary: ORDER WILLIAM B. SHUBB, District Judge. On October 3, 2014, petitioner filed a motion pursuant to 28 U.S.C. 2255. On October 29, 2014, the court ordered that the United States file an opposition to the motion no later than November 25, 2014, and that petitioner may file a reply no later than December 9, 2014. The United States timely filed its opposition on November 20, 2014, and moved to dismiss the petition. The time has now passed for petitioner to file a reply, and petitioner has filed n
Summary: ORDER WILLIAM B. SHUBB, District Judge. On October 3, 2014, petitioner filed a motion pursuant to 28 U.S.C. 2255. On October 29, 2014, the court ordered that the United States file an opposition to the motion no later than November 25, 2014, and that petitioner may file a reply no later than December 9, 2014. The United States timely filed its opposition on November 20, 2014, and moved to dismiss the petition. The time has now passed for petitioner to file a reply, and petitioner has filed no..
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ORDER
WILLIAM B. SHUBB, District Judge.
On October 3, 2014, petitioner filed a motion pursuant to 28 U.S.C. § 2255. On October 29, 2014, the court ordered that the United States file an opposition to the motion no later than November 25, 2014, and that petitioner may file a reply no later than December 9, 2014. The United States timely filed its opposition on November 20, 2014, and moved to dismiss the petition. The time has now passed for petitioner to file a reply, and petitioner has filed no reply. Accordingly, the court now takes the matter under submission.
This is petitioner's second, successive petition under § 2255. His first petition was filed on January 28, 2007, and on April 30, 2008, the court adopted the findings and recommendation of the magistrate judge and dismissed the petition on the ground that it was untimely and that petitioner was not entitled to equitable tolling. Petitioner appealed from that order, and on June 18, 2010 the Ninth Circuit affirmed the dismissal of that first petition.
The claims petitioner seeks to raise in his second petition, alleging ineffective assistance of counsel, were either raised or could have been raised in his first petition. See Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Neither in his first petition nor in his second petition does petitioner point to facts sufficient to entitle him to equitable tolling such as to excuse the more than six year delay between the denial of his first petition and the filing of his second petition.
Petitioner has not received a certificate of appealability from the Court of Appeals pursuant to 28 U.S.C. §§ 2244 and 2255(h). Nor would this court issue one under the present circumstances. Accordingly, this court lacks jurisdiction to consider the pending petition. See United States v. Allen, 157 F.3d 661 (9th Cir. 1998)
IT IS THEREFORE ORDERED that petitioner's motion for relief pursuant to the provisions of 28 U.S.C. § 2255 in case No. 00-cr-0411 (Docket No. 227) be, and the same hereby is DENIED, and the pending petition is hereby DISMISSED. The Clerk is ordered to close case No. 2:14-cv-2450-WBS.
