Cantu v. United States of America

Filing 20

OPINION AND ORDER denying 19 Motion to Vacate. Signed by Judge Robert L Miller, Jr on 1/4/2019. (Copy mailed to pro se party)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTONIO CANTU,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 3:16-CV-425 RLM
(Arising from 3:11-CR-40 RLM)

OPINION AND ORDER
On July 7, 2017 defendant Antonio Cantu filed a motion to correct his
sentencing classification [Doc. No. 19]. Mr. Cantu asks this court to reassign him
to a lower security facility based on errors in his initial sentencing. It’s the
Bureau of Prison, not the court, that decides where a prisoner will be confined.
18 U.S.C. § 3621(b). Mr. Cantu’s proper course of remedy to challenge errors in
his sentencing is a motion to vacate his conviction under 28 U.S.C. § 2255 or an
appeal to the circuit court. The court, recognizing that Mr. Cantu is proceeding
pro se, will construe his current motion as if it were a petition made under 28
U.S.C. § 2255. For the reasons stated below, the court must deny Mr. Cantu’s
petition.
This court considered and denied a successive 28 U.S.C. § 2255 petition,
certified by the court of appeals, on January 2, 2016. Mr. Cantu then appealed
to the court of appeals, which found that he had not made a substantial showing
of a denial of a constitutional right with regards to the district court’s denial of

his 28 U.S.C. § 2255 petition. The court of appeals subsequently denied his
request for a certificate of appealability.
This 28 U.S.C. § 2255 motion isn’t certified by the court of appeals, so the
doesn’t have jurisdiction to consider the motion; Mr. Cantu hasn’t received
authorization from the court of appeals for this court to consider it. 28 U.S.C. §
2244(b)(3)(A), 28 U.S.C. § 2255(h). The court, therefore, cannot hear Mr. Cantu’s
latest motion to vacate his judgment.
For the foregoing reason, the court DENIES the Mr. Cantu’s motion to
vacate [Doc. No. 19].
SO ORDERED
ENTERED: January 4, 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court