Alvarez v. United States ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Crim. Case No. 3:90-cr-01320-BTM UNITED STATES OF AMERICA, Civ. Case No. 3:19-cv-02314-BTM 12 13 v. ORDER CONSTRUING MOTION AS MOTION TO VACATE 14 RAMON ALVAREZ-RODRIGUEZ, CONVICTION UNDER 28 U.S.C. § 15 2255 AND DISMISSING Defendant. SUCCESSIVE § 2255 MOTION 16 FOR LACK OF JURISDICTION 17 [Crim. Case, ECF Nos. 289, 291] 18 19 Before the Court are Defendant Ramon Alvarez-Rodriguez’s recent filings 20 which seek to collaterally-attack his federal conviction for which he is currently 21 incarcerated. (Crim. Case, ECF Nos. 289, 291.) Because the instant motions 22 challenge the validity of his underlying conviction, the Court has construed the 23 motions as motions to vacate, set aside, or correct sentence under 28 U.S.C. § 24 2255. See Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (“Prisoners 25 cannot avoid the [Antiterrorism and Effective Death Penalty Act of 1996’s] rules by 26 inventive captioning. Any motion filed in the district court that imposed the 27 sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 28 2255, no matter what title the prisoner plasters on the cover.”); see also 28 U.S.C. 1 ||§ 2255(a) (“A prisoner in custody under sentence of a court established by Act of 2 ||Congress claiming the right to be released upon the ground that the sentence was 3 ||imposed in violation of the Constitution or laws of the United States, or that the 4 court was without jurisdiction to impose such sentence, or that the sentence was 5 excess of the maximum authorized by law, or is otherwise subject to collateral 6 attack, may move the court which imposed the sentence to vacate, set aside or 7 || correct the sentence.”). Although Defendant has become increasingly inventive in 8 ||his captioning, the instant motions are his sixth attempt to collaterally attack his 9 || underlying federal conviction via § 2255. (See Crim. Case, ECF Nos. 182, 211, 10 222, 230, 231, 248, 250, 269, 270.) Because Defendant has not obtained 11 permission from the United States Court of Appeals for the Ninth Circuit prior to 12 |Ifiling his instant § 2255 motions, however, the Court is without jurisdiction to 13 |/consider them or grant him the relief requested therein. See United States v. 14 || Washington, 653 F.3d 1057, 1065 (9th Cir. 2011) (“[A] second or successive § 15 2255 petition may not be considered by the district court unless petitioner obtains 16 ||acertificate authorizing the district court to do so.” (internal quotations and citations 17 ||omitted)). Accordingly, the motions (Crim. Case, ECF Nos. 289, 291) are 18 || DISMISSED for lack of jurisdiction. 19 IT IS SO ORDERED. 20 , 21 ||Date: December 9, 2019 (led. Meek 29 Honor le Barry Ted Moskownz United States District Judge 23 24 25 26 27 28