United States v. Hiralal

238 F. App'x 225

Opinion

MEMORANDUM

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Rama K. Hiralal and Veena V. Hiralal appeal pro se from the district court’s denial of their second motion to reconsider the denial of their 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We conclude that because appellants’ second motion to reconsider seeks to revisit the district court’s denial on the merits of a claim for relief, the motion should be treated as a successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Because appellants did not obtain authorization to file a successive § 2255 motion, the district court lacked jurisdiction to consider appellants’ claims. See 28 U.S.C. §§ 2244(b)(3), 2255; see also United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998). Although we may construe appellants’ contentions as a request for authorization to file a successive § 2255 motion, see Cooper v. Calderon, 274 F.3d 1270, 1275 (9th Cir.2001) (per curiam), we decline to do so because appellants have failed to set forth the prima facie showing required by § 2255.

To the extent that appellants seek to appeal from the district court’s order denying their § 2255 motion, we lack jurisdiction because appellants’ notice of appeal is untimely as to that order. See United States v. Sadler, 480 F.3d 932, 937 (9th Cir.2007).

To the extent that appellants’ brief raises uncertified issues, we construe their arguments as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

VACATED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.