govinfo:USCOURTS-caed-1_95-cr-05018-0

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, )
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Plaintiff/ )
Respondent, )
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vs. )
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NEIL PARIS SUGARMAN, )
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Defendant/ )
Petitioner. )
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No. CR-F-95-5018 REC
ORDER DENYING PETITIONER'S
"MOTION TO TAKE LEAVE TO
FILE A PETITION PURSUANT TO
28 U.S.C. § 2255"
On April 24, 2006, petitioner Neil Paris Sugarman filed a
“Motion to Take Leave to File a Petition Pursuant to 28 U.S.C. §
2255.”  Attached to petitioner’s motion is a copy of an Order
filed in the Ninth Circuit in Sugarman v. United States, No. 05-
76812, wherein the Ninth Circuit ordered in pertinent part:
A review of the record shows the district
court dismissed petitioner’s first habeas
corpus petition for failure to state a
cognizable claim.  A federal habeas petition
filed after an earlier petition has been
dismissed for technical or procedural reasons
is not a second or successive petition.  See
Case 1:95-cr-05018     Document 95     Filed 04/26/06     Page 1 of 3
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Slack v. McDaniel, 529 U.S. 473 (2000). 
Moreover, the district court has informed
petitioner that he may proceed by refiling
his claims pursuant to 42 U.S.C. § 1983,
rather than filing a federal habeas petition. 
Accordingly, the application for
authorization to file a second or successive
28 U.S.C. § 2254 habeas petition in the
district court is denied as unnecessary.
Petitioner, who is federal prisoner, advises that he intends to
file a Section 2255 motion attacking his conviction and sentence, 
that he filed a motion for clarification with the Ninth Circuit
on March 6, 2006 to reflect the correct information and to
clarify what kind of civil action petitioner is being allowed to
file, and that his motion for clarification remains under
submission with the Ninth Circuit.  In his instant motion,
petitioner moves this court for permission to file a Section 2255
motion, stating that “[s]ince time is of the essence and
Petitioner does not want to file a § 2255 motion until it is
clarified if that this the correct vehicle to file at this time
and based on the Ninth Circuit’s Order.” 
If petitioner believes that he is entitled to file a motion
for relief pursuant to 28 U.S.C. § 2255, petitioner can file that
motion without permission from this court, setting forth in that
motion the grounds for relief and why petitioner believes he is
entitled to raise them at this juncture, notwithstanding the
denial by this court of his Section 2255 motion by Order filed on
June 10, 1997 and the denial by this court of petitioner’s
petition for writ of error coram nobis by Order filed on July 31,
1998.   Because the court has no information concerning the
Case 1:95-cr-05018     Document 95     Filed 04/26/06     Page 2 of 3
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content of petitioner’s request to the Ninth Circuit in No. 05-
76812 and no information concerning the grounds upon which
petitioner intends to base his Section 2255 motion, the court
cannot and does not express any opinion with regard to the
procedural or substantive merits of any claims petitioner may
have.  
ACCORDINGLY:
1.  Petitioner Neil Sugarman’s “Motion to Take Leave to File
a Petition Pursuant to 28 U.S.C. § 2255" is denied.
IT IS SO ORDERED.
Dated:  April 25, 2006     /s/ Robert E. Coyle     
668554 UNITED STATES DISTRICT JUDGE
Case 1:95-cr-05018     Document 95     Filed 04/26/06     Page 3 of 3

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