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United States v. Depack

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


September 25, 2008

UNITED STATES OF AMERICA,
v.
ROY DEPACK, DEFENDANT.

The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.

ORDER

This matter having come before the Court upon what Defendant calls a "Motion for reconsider [sic] of sentence under (3553);" and the Court finding that Defendant essentially requests that the Court reconsider is sentence yet again under 28 U.S.C. § 2255; and it appearing that 28 U.S.C. § 2255 states that "A second or successive 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;" and it appearing that 28 U.S.C. § 2244(b)(3)(A) states that "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application;" and it appearing that Defendant has not moved in the court of appeals for an order authorizing the district court to consider this application;

IT IS on this 25th day of September, 2008, ORDERED that Defendant's motion [#78] is DENIED.

Hon. Faith S. Hochberg, U.S.D.J.

20080925

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