Opinion
Cause No. 3:02-CR-93(01)RM.
May 3, 2006
OPINION and ORDER
Patrick Stewart has filed a "Motion to Correct Upward Departure," wherein he requests that his sentence be corrected. Mr. Stewart claims that by using "hypothetical methodology" and "hypothetical grouping," his sentence should be recalculated and lowered.
Mr. Stewart's claim for relief must be considered as a motion brought pursuant to 28 U.S.C. § 2255, which allows a prisoner seeking to collaterally attack a sentence to "move the court which imposed the sentence to vacate, set aside or correct the sentence." Because Mr. Stewart's original petition filed pursuant to 28 U.S.C. § 2255 was denied on December 1, 2005, his current filing must be considered to be a second or successive petition under § 2255. 28 U.S.C. § 2244 provides that before a second or successive motion is filed with the district court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."
Accordingly, Mr. Stewart's motion to correct his sentence [docket # 119] is DENIED as not properly before this court.
SO ORDERED.