Arredondo v. USA

Filing 2

ORDER DISMISSING SECOND MOTION TO VACATE. SET ASIDE OR CORRECT SENTENCE signed by Judge Robert E. Coyle on 1/24/06. (Kusamura, W)

(2255-1:97-CR-5167-REC) Arredondo v. USA

Doc. 2

Case 1:06-cv-00056-REC

Document 2

Filed 01/24/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES OF AMERICA, 14 15 16 17 18 19 20 21 22 23 24 25 26 Although the underlying criminal action has been transferred to the docket of Judge Oliver W. Wanger, petitioner's Section 2255 motion was assigned to this court because this court sentenced petitioner. 1
1

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

NORBERTO ARREDONDO,

Petitioner, vs.

Respondent.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV-F-06-056 REC (No. CR-F-97-CR-5167 OWW) ORDER DISMISSING SECOND MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT

On January 17, 2006, petitioner Norberto Arredondo filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner contends that he is entitled to relief

because the court imposed sentencing enhancements in violation of United States v. Booker, 543 U.S. 220 (2005).1 The court hereby dismisses petitioner's motion. On July 2, 2001, petitioner filed a Section 2255 motion

Dockets.Justia.com

Case 1:06-cv-00056-REC

Document 2

Filed 01/24/2006

Page 2 of 3

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

based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Arrendono v. United States, No. CV-F-01-5851 REC.

See

By Order filed

on July 5, 2001, the court denied this Section 2255 motion. Therefore, the instant motion is a second or successive Section 2255 motion. Petitioner must first apply to the Ninth Circuit In the absence

Court of Appeal for leave to file such a motion.

of authorization from the Ninth Circuit, this court does not have jurisdiction to hear it. 661, 664 (9th Cir. 1998). Petitioner, citing McClesky v. Zant, 499 U.S. 467 (1991), argues that the instant motion should not be construed by this court as a "second or successive" motion because his challenge to his sentence under Booker is a new issue that did not exist and could not have been raised at the time he filed his initial Section 2255 motion. However, even if the court assumes See United States v. Allen, 157 F.3d

petitioner's position is correct, petitioner would not be entitled to relief. collateral review. Cir. 2005).2 ACCORDINGLY: 1. Petitioner Norberto Arredondo's second motion to vacate, Booker is not retroactive to cases on United States v. Cruz, 423 F.3d 1119 (9th

set aside or correct sentence pursuant to 28 U.S.C. § 2255 is

Petitioner argues that the court should hold the instant motion in abeyance pending resolution by the Supreme Court of Washington v. Recuenco, No. 05-83. The court denies this request. The issue before the Supreme Court in Recuenco does not address the applicability of Booker to cases on collateral review. 2

2

Case 1:06-cv-00056-REC

Document 2

Filed 01/24/2006

Page 3 of 3

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

dismissed. 2. The Clerk of the Court is directed to enter judgment for

respondent. IT IS SO ORDERED. Dated: 668554 January 23, 2006 /s/ Robert E. Coyle UNITED STATES DISTRICT JUDGE

3