United States v. Begay

ORDER

PAUL G. ROSENBLATT, District Judge.

Pending before the Court is the defendant's Motion to Set Aside "Guilty" Plea Under Rule 11(e) (Fed.R.Crim. Procedure Rule 11(e)) (Doc. 58), filed July 19, 2012. Rule 11(e) provides that once a court imposes sentence, a defendant may not withdraw his plea of guilty and it may be set aside only by direct appeal or on collateral attack. The defendant filed this motion after he exhausted his direct appeal, and after his original motion filed pursuant to 28 U.S.C. § 2255 was denied by this Court on March 7, 2011 as being time-barred; the Ninth Circuit Court of Appeals dismissed the defendant's appeal of the denial of his original § 2255 motion on August 27, 2012 (Case No. 12-15872) by denying the issuance of a certificate of appealability. Notwithstanding how the defendant's motion is titled, it is properly construed as an attempt to file a second or successive § 2255 motion which he may not properly bring without the prior permission of the Ninth Circuit.^[1] United States v. Allen , 157 F.3d 661, 664 (9th Cir.1998). Since the defendant has not obtained that required permission, the Court has no authority to consider the merits of the defendant's motion. Therefore,

IT IS ORDERED that defendant Ivan Ray Begay's Motion to Set Aside "Guilty" Plea Under Rule 11(e) (Fed.R.Crim. Procedure ...