Opinion
No. CR S-93-233 GEB GGH P.
October 21, 2008
ORDER
On July 13, 2007, movant filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582 (# 221). This motion was erroneously docketed as a motion pursuant to 28 U.S.C. § 2255. On June 6, 2008, movant filed a motion pursuant to 28 U.S.C. § 2255 (# 227). On June 25, 2008, movant filed an amended motion pursuant to 28 U.S.C. § 2255 (# 228).
On June 30, 2008, this court ordered the motions brought pursuant to 28 U.S.C. § 2255 (# 227 and # 228) stricken because movant had not properly sought the court's leave to make these serial filings. Movant has now appealed this order. See Ninth Circuit case no. 08-17184.
The June 30, 2008, order was based on a mistaken apprehension that movant had previously filed a § 2255 motion. As discussed above, the July 13, 2007, motion, erroneously docketed as a § 2255 motion, was actually brought pursuant to 18 U.S.C. § 3582.
Following the Ninth Circuit's consideration of movant's appeal, this court intends to vacate the June 30, 2008, order and allow movant to proceed with his amended § 2255 motion. The court will also order the docket corrected to reflect that the July 13, 2007, motion was brought pursuant to 18 U.S.C. § 3582.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit Court of Appeals in Case Number 08-17184.