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Coquette April Frost v. United States, 8:12-cr-120-T-33SPF (2019)

Court: District Court, M.D. Florida Number: infdco20191023a96 Visitors: 9
Filed: Oct. 22, 2019
Latest Update: Oct. 22, 2019
Summary: ORDER VIRGINIA M. HERNANDEZ COVINGTON , District Judge . This matter is before the Court on pro se Coquette A. Frost's 28 U.S.C. 2255 Motion to Vacate, Set Aside or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 57), filed on August 19, 2019. The United States of America responded on September 20, 2019. (Civ. Doc. # 3). Frost has not filed a reply and the time for filing a reply has expired. For the reasons that follow, the Motion is dismissed for lack of jurisdiction as successive. I.
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ORDER

This matter is before the Court on pro se Coquette A. Frost's 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 57), filed on August 19, 2019. The United States of America responded on September 20, 2019. (Civ. Doc. # 3). Frost has not filed a reply and the time for filing a reply has expired. For the reasons that follow, the Motion is dismissed for lack of jurisdiction as successive.

I. Discussion

A prisoner who previously filed a Section 2255 motion must request and receive permission from the Court of Appeals before filing a second or successive one. See 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h). "Absent such authorization, a district court lacks jurisdiction to consider such a motion." Hamilton v. United States, No. 8:06-cr-464-T-17TGW, 2018 WL 5624182, at *1 (M.D. Fla. July 3, 2018)(citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)).

Frost previously filed one unsuccessful Section 2255 motion, (Crim. Doc. # 40), which was denied on November 28, 2016. (Crim. Doc. # 49). And Frost has not obtained the Eleventh Circuit's permission to file a second or successive Section 2255 motion. Frost's newly-asserted challenge constitutes an improper, successive motion pursuant to 28 U.S.C. § 2255 and, therefore, pursuant to Sections 2255(e) and (h), this Court must dismiss this claim.

II. Certificate of Appealability and Leave to Appeal In Forma Pauperis Denied

The Court declines to issue a certificate of appealability because Frost has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Nor will the Court authorize Frost to proceed on appeal in forma pauperis because such an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Frost shall be required to pay the full amount of the appellate filing fee pursuant to Section 1915(b)(1) and (2).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Pro se Coquette A. Frost's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 57) is DISMISSED for lack of jurisdiction as successive. Such dismissal is without prejudice to Frost's filing a motion in the Eleventh Circuit for permission to file a successive Section 2255 motion to vacate. The Clerk is directed to close this case.

DONE and ORDERED.

Source:  Leagle

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