Opinion
Cause No. 3:16-CV-425 RLM
01-04-2019
ANTONIO CANTU, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(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