Filed: Jul. 22, 2016
Latest Update: Jul. 22, 2016
Summary: MEMORANDUM AND ORDER E. RICHARD WEBBER , District Judge . Before the Court are movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255 [Doc. #1] and his request to hold this case in abeyance pending a decision from the United States Court of Appeals for the Eighth Circuit on movant's petition to file a successive habeas action [Doc. #1]. Specifically, movant states that he is filing the instant motion to vacate, protectively, "before the statute of limitation
Summary: MEMORANDUM AND ORDER E. RICHARD WEBBER , District Judge . Before the Court are movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255 [Doc. #1] and his request to hold this case in abeyance pending a decision from the United States Court of Appeals for the Eighth Circuit on movant's petition to file a successive habeas action [Doc. #1]. Specifically, movant states that he is filing the instant motion to vacate, protectively, "before the statute of limitations..
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MEMORANDUM AND ORDER
E. RICHARD WEBBER, District Judge.
Before the Court are movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. #1] and his request to hold this case in abeyance pending a decision from the United States Court of Appeals for the Eighth Circuit on movant's petition to file a successive habeas action [Doc. #1].
Specifically, movant states that he is filing the instant motion to vacate, protectively, "before the statute of limitations period expires in order to protect [his] rights in the event the Eighth Circuit grants" his request for permission to file a second petition under 28 U.S.C. § 2255(h)(2) and 28 U.S.C. § 2244(b)(2)(A), in which to raise a claim that relies on Johnson, a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. The Eighth Circuit has not yet ruled on this request in Allen v. United States, Case No. 16-2094 (8th Cir. 2016).1
Under 28 U.S.C. § 2255(h):
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.
When a second or successive habeas petition is filed in a District Court without the authorization of the Court of Appeals, the Court should dismiss it, or, in its discretion and in the interests of justice, transfer the motion to the Court of Appeals. Boyd v. U.S., 304 F.3d 813, 814 (8th Cir. 2002).2
Because movant has already filed an action with the Eighth Circuit Court of Appeals as a request to file a second or successive § 2255 motion based on Johnson, this Court will not transfer the instant action, but rather, will dismiss it without prejudice to refiling if, and when, movant obtains permission to do so.
Accordingly,
IT IS HEREBY ORDERED that movant's request to hold this case in abeyance pending a decision from the United States Court of Appeals for the Eighth Circuit on movant's petition to file a successive habeas action is DENIED without prejudice.
IT IS FURTHER ORDERED that movant's motion to vacate is DENIED, without prejudice, because movant has not yet obtained permission from the United States Court of Appeals for the Eighth Circuit to bring the motion in this Court. See 28 U.S.C. § 2255(h).
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate Order of Dismissal shall accompany this Memorandum and Order.
