Filed: Jun. 13, 2012
Latest Update: Jun. 13, 2012
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Andre Christopher Myers has submitted for filing his third 28 U.S.C. 2255 motion attacking the same drugs-based conviction that he previously challenged under 2255. CR495-123, doc. 1155; see also doc. docs. 803, 849, 863 (first 2255 motion and rulings denying it); docs. 1063 & 1064 (second 2255 motion and adverse ruling). Since this is a successive 2255 motion, Myers must first "move in the appropriate court of appeals for an
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Andre Christopher Myers has submitted for filing his third 28 U.S.C. 2255 motion attacking the same drugs-based conviction that he previously challenged under 2255. CR495-123, doc. 1155; see also doc. docs. 803, 849, 863 (first 2255 motion and rulings denying it); docs. 1063 & 1064 (second 2255 motion and adverse ruling). Since this is a successive 2255 motion, Myers must first "move in the appropriate court of appeals for an ..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Andre Christopher Myers has submitted for filing his third 28 U.S.C. § 2255 motion attacking the same drugs-based conviction that he previously challenged under § 2255. CR495-123, doc. 1155; see also doc. docs. 803, 849, 863 (first § 2255 motion and rulings denying it); docs. 1063 & 1064 (second § 2255 motion and adverse ruling). Since this is a successive § 2255 motion, Myers must first "move in the appropriate court of appeals for an order authorizing the district court to consider the application."1 28 U.S.C. § 2244(b)(3)(A); see 28 U.S.C. § 2255(h) (cross-referencing § 2244 certification requirement).
In fact, district courts must dismiss second or successive petitions, without awaiting any response from the government, absent prior approval by the court of appeals. Levert v. United States, 280 F. App'x 936, 936 (11th Cir. 2008) (per curiam) ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition."); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (same); Mattox v. United States, 2012 WL 555799 at *1 (11th Cir. 2012) ("When a prisoner has previously filed a § 2255 motion . . ., he must apply for and receive permission from us before filing a successive § 2255 motion") (quotes and cite omitted).
Because Myers has filed this latest § 2255 motion without prior Eleventh Circuit approval, this Court is without jurisdiction to consider it. Consequently, it should be DISMISSED as successive. Applying the Certificate of Appealability ("COX) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED.
