Free Order - District Court of California - California

Case 3:07-cv-02887-PJH

Document 4

Filed 07/31/2007

Page 1 of 2

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent. _______________________________/ Petitioner Clemente Perez Luna, a federal prisoner, proceeding pro se, filed two motions, one on May 9, 2007, entitled a "motion to recall mandate," and the other on May 21, 2007, entitled a "motion to amend federal rule civil procedure 15(a)(b) relation back, or via writ of habeas corpus section 2255." Because neither motion constituted Luna's first § 2255 motion requiring the court to first inform Luna of any recharacterization of the motions, the court appropriately re-characterized the two motions as motions to vacate Luna's sentence under 28 U.S.C. § 2255, and corresponding civil cases were opened by the Clerk. Subsequently, on June 25, 2007, the court dismissed the cases as impermissible second and successive habeas petitions. Luna has now filed what appears to be a request for a status conference in case no. C 07-2887 PJH (although he has provided the case number for his first § 2255 motion, C 01-2954 PJH). Because that case has been dismissed, the request is DENIED. Pursuant to this court's June 25, 2007 order, Luna is again advised that because the court has already adjudicated one § 2255 motion filed by Luna, C 01-2954 v. ORDER DENYING PETITIONER'S REQUEST FOR STATUS HEARING CLEMENTE PEREZ LUNA, Petitioner, No. C 07-2736 PJH/ 07-2887 PJH CR 90-0392 PJH

Case 3:07-cv-02887-PJH

Document 4

Filed 07/31/2007

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PJH, this court is without jurisdiction to consider his subsequent requests until he obtains the requisite certification from the Ninth Circuit. See United States v. Allen, 157 F.3d 661, 644 (9th Cir. 1998) (a district court has no jurisdiction to reach the merits of any successive claim unless petitioner receives certification from the court of appeals).

IT IS SO ORDERED.

Dated: July 30, 2007 ______________________________ PHYLLIS J. HAMILTON United States District Judge

-2-