                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 9, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41678
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RUBEN OSCAR GUTIERREZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:95-CR-164-1
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Ruben Oscar Gutierrez appeals the district court’s denial of

his petition for a writ of mandamus seeking to compel the United

States Attorney for the Southern District of Texas to file a FED.

R. CRIM. P 35 motion for a reduction of his sentence based on

cooperation that he provided in connection with a drug-

trafficking prosecution.    Although the Government’s pleadings in

the district court indicate that the Government agreed to file a

Rule 35 motion if Gutierrez provided substantial assistance and


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 04-41678
                                  -2-

that Gutierrez provided such assistance, Gutierrez is not

entitled to relief for the following reasons.

     First, the requested relief falls within the ambit of a 28

U.S.C. § 2255 motion.     See Reyes-Requena v. United States, 243

F.3d 893, 903 (5th Cir. 2001); United States v. Cates, 952 F.2d

149, 151 (5th Cir. 1992).    As Gutierrez previously filed a § 2255

motion seeking the same relief, he was required to seek leave

from this court prior to filing a second or successive post-

conviction motion.     See 28 U.S.C. §§ 2244(b)(3), 2255.   As he did

not do so, the district court was without jurisdiction to

entertain his motion.     See United States v. Key, 205 F.3d 773,

774 (5th Cir. 2000).

     Second, even if we were to construe Gutierrez’s mandamus

petition as seeking leave from this court to file a second or

successive § 2255 motion, we would not grant it because

Gutierrez’s claims do not rely on either newly-discovered

evidence that would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have

found the movant guilty, or a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.     See § 2255;

Reyes-Requena, 243 F.3d at 897-99.

     Finally, even if a petition for writ of mandamus were the

appropriate vehicle for Gutierrez’s claims, the district court

did not err in denying him relief.    Gutierrez had other avenues
                           No. 04-41678
                                -3-

of seeking relief that he failed to pursue in a timely manner,

and he failed to appeal any prior rulings.   Given these facts and

the passage of time between his conviction and this third attempt

by Gutierrez to seek the same relief, the district court properly

exercised its discretion in concluding that Gutierrez’s petition

for a writ of mandamus was not appropriate under the

circumstances.   See United States v. Williams, 400 F.3d 277,

280-81 (5th Cir. 2005).

     For all the foregoing reasons, the judgment of the district

court is AFFIRMED.
