No. CV 03-1435 LH/KBM, CR 00-1152 LH.
June 21, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant's Amended Motion Pursuant To 28 U.S.C. § 2255 (CV Doc. 39) filed June 21, 2010. Defendant's motion invokes the "relation back" provisions of rule 15(c) of the Federal Rules of Civil Procedure and asserts a claim of ineffective assistance of counsel in the criminal proceeding. "A pleading asserting a `new ground for relief' from the [criminal] judgment is advancing a new claim and is therefore treated as a successive § [2255 motion]." United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006) (noting same analysis under § 2254 and § 2255). Defendant's motion clearly seeks to challenge, once again, his conviction in the captioned criminal proceeding. Furthermore, the Court of Appeals for the Tenth Circuit recently denied Defendant leave to file a second or successive § 2255 motion against his 2001 conviction (CV Doc. 37). As a result, under the factors in In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008), the Court will dismiss Defendant's motion for lack of jurisdiction.
IT IS THEREFORE ORDERED that Defendant's Amended Motion Pursuant To 28 U.S.C. § 2255 (CV Doc. 39) filed June 21, 2010, is DISMISSED for lack of jurisdiction.