Opinion
Case No. A96-0108 CR (JWS).
December 29, 2005
ORDER DENYING MOTION TO AMEND
On December 12, 2005, Ronald Earl Geiger filed a document he has titled "Judicial Notice of Amendment of 28 U.S.C. § 2255 motion pursuant to Rule 15 Rule 12(b)(1)." This appears to be more in a series of attempts to avoid the successive petition rules which require Mr. Geiger to seek permission from the Court of Appeals for the Ninth Circuit before filing another motion under 28 U.S.C. § 2255 in this Court. And again, Mr. Geiger has challenged the ability of the Magistrate Judge to make findings of fact and conclusions of law or make a report or recommendation. The Court has already addressed that issue, and denied Mr. Geiger's motion to "void judgment for lack of magistrate judge jurisdiction," and the Court will not revisit the issue again.
Docket No. 328A.
Mr. Geiger previously filed a § 2255 motion in this Court, which was denied on July 10, 2003. See Docket No. 308; see also Docket Nos. 177, 178, 206, 248, 249, 258, 260, 305, 308, 309, 314, 324.
See Docket Nos. 328, 328A.
See Docket No. 329 at 2 ("`if a magistrate judge were unable to do felony sentencings, then it would be odd for such a judge to have the power under § 2255 to resentence or to even vacate a prior sentence resulting from a felony conviction, [which could give the] impression that magistrate judges are not adjuncts, but are independent of Article III control. The Supreme Court and our sister courts have consistently asserted that the ability of Article III district courts to control and review a magistrate judge's decision provides compelling support for the constitutionality of increased magistrate judge participation in the federal court system.' And this is exactly what occurred in Mr. Geiger's case, where the district court judge was able to `control and review a magistrate judge's decision.'") (quoting from the case Mr. Geiger relied upon, United States v. Johnson, 258 F.3d 361, 363 (5th Cir. 2001)).
Mr. Geiger is reminded that, under 28 U.S.C. § 2244(a):
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
Section 2255 explains that:
A second or successive petition or motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Under 28 U.S.C. §§ 2244(a) and 2255, the Court may not consider a successive § 2255 motion, without first receiving authorization from the Court of Appeals for the Ninth Circuit. Therefore, Mr. Geiger must first seek permission from the Court of Appeals for the Ninth Circuit.
IT IS HEREBY ORDERED that:
Mr. Geiger's motion, at docket number 328A, is DISMISSED without prejudice to filing a motion under 28 U.S.C. § 2255 with the permission of the Court of Appeals for the Ninth Circuit.