Opinion
No. CR94-43-S-EJL, CIV03-44-S-EJL
February 3, 2003
ORDER
Pending before the Court in the above entitled matter is Defendant Apolonio Huertas-Chicas' Motion for Time Reduction by an Inmate in Federal Custody. The motion is made pursuant to 28 U.S.C. § 2255 and seeks a time reduction on his sentence. Defendant argues the Due Process Clause and the Equal Rights Act of 1964 require that he be afforded a reduction in sentence for participating in drug programs and allowed to reside in a half-way house.
On July 30, 1996, the Defendant has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket No. 552). The previous § 2255 motion was denied by this Court on July 10, 1998. (Docket No. 673). Second or successive 2255 motions cannot be entertained by the District Court unless the motion has been certified as provided by 28 U.S.C. § 2244 and only if the second motion contains either newly discovered evidence or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255. Specifically, before a second or successive 2255 motion can be filed in District Court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A).
The Defendant has failed to make the proper application consistent with 28 U.S.C § 2244 for the Ninth Circuit to authorize this District Court to consider the Defendant's motion. Thus, the Court must DENY Defendant's motion (Docket No. 691) WITHOUT PREJUDICE.