USA v. Soto-Lopez et al
Criminal

District of Nebraska, ned-8:2005-cr-00325-35657

MEMORANDUM OPINION on the defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 {{80}} as to defendant Valentin Cuevas-Arredondo. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)

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8:05-cr-00325-LES-TDT Doc # 81 Filed: 09/26/08 Page 1 of 2 - Page ID # 843 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UNITED STATES OF AMERICA,)) Plaintiff,) 8:05CR325) v.)) VALENTIN CUEVAS-ARREDONDO,) MEMORANDUM OPINION) Defendant.) ______________________________) This matter is before the Court on the defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Filing No. 80). For the following reasons, the motion will be denied. DISCUSSION This is the second motion the defendant has filed pursuant to 28 U.S.C. § 2255. His first § 2255 motion, filed on October 12, 2007, was denied by the Court on January 4, 2008 (see Filing Nos. 78 and 79). The defendant's current § 2255 motion constitutes a "second or successive motion" within the meaning of 28 U.S.C. § 2255. 28 U.S.C. § 2255; see United States v. Nicholson, 231 F.3d 445, 454 (8th Cir. 2000); see also United States v. Allen, 157 F.3d 661, 664 (8th Cir. 1998); and Vancleave v. Norris, 150 F.3d 926, 927-29 (8th Cir. 1998). A petitioner seeking to file a second or successive § 2255 motion challenging their conviction or sentence must first obtain circuit court certification. 28 8:05-cr-00325-LES-TDT Doc # 81 Filed: 09/26/08 Page 2 of 2 - Page ID # 844 U.S.C. § 2255 (2001); Allen, 157 F.3d at 664; U.S. v. Arnold, 2001 WL 435648 at 1 (D.Minn. 2001). Because the defendant has not received approval from the Eighth Circuit to file a second or successive § 2255 motion, the Court lacks jurisdiction over his claims. United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Allen, at 664; United States v. Alvarez-Ramirez, 128 F.Supp.2d 1265, 1267 (C.D.Cal. 2001). Lacking jurisdiction, defendant's motion will be denied without prejudice. Accordingly, a separate order will be entered in accordance with this memorandum opinion. DATED this 26th day of September, 2008. BY THE COURT: /s/ Lyle E. Strom _________________________________ LYLE E. STROM, Senior Judge United States District Court -2-