ORDER AND REASONS

MARY ANN VIAL LEMMON, District Judge.

IT IS HEREBY ORDERED that Terrence Millsaps' Motion for Leave to Preserve the Right to File a petition for habeas corpus if the Supreme Court of the United States recognizes a new right (Doc. #729) is construed as a motion to bring a second or successive petition for habeas corpus under 28 U.S.C. § 2255, and as such is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit for consideration.

Defendant, Terence Millsaps, has filed a motion for leave to preserve his right to file a petition for habeas corpus if the Supreme Court of the United States recognizes a new right He cites: Johnson v. United States, No. 13-7120. The court construes this as a motion for leave to bring a petition under § 2255.

A review of this court's record reflects that on March 15, 1999, defendant filed a prior § 2255 motion related to this same conviction and sentence. The motion was denied with prejudice on the merits by Judgment entered April 28, 2000. Defendant appealed the judgment, and the United States Court of Appeals for the Fifth Circuit dismissed the appeal for want of prosecution. See United States v. Millsaps, 00-30798 (5th Cir. 2000).

The motion presently before the court is considered to be a second or successive motion as described in 28 U.S.C. §§ 2244 and 2255. In order to overcome the prohibition against the filing of second or successive claims, the defendant must establish that the motion contains claims based on newly discovered evidence, that if proved and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the defendant guilty of the offense; or claims based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court of the United States, that was previously unavailable. 28 U.S.C. § 2255.

Before defendant's motion can be considered on the merits by this court, he must obtain certification from the United States Court of Appeals for the Fifth Circuit to file this second or successive motion by making a prima facie showing of the above listed requirements to that appellate court as required by § 2255. Until such time as defendant obtains said certification, this court is without jurisdiction to proceed. Accordingly,

IT IS HEREBY ORDERED that defendant's motion be construed as a motion for the district court to consider the second or successive claims raised therein.

IT IS FURTHER ORDERED that this motion be and hereby is TRANSFERRED to the United States Court of Appeals for the Fifth Circuit under the authority of 28 U.S.C. § 1631 for that court to determine whether petitioner is authorized under 28 U.S.C. §§ 2244 and 2255 to file this instant motion in this court.

Dear Mr. Cayce:

On 5/2/2016, the Honorable Mary Ann Vial Lemmon, United States District Court Judge for this district, entered an order pursuant to 28 U.S.C. 1631 transferring the attached pleading listed below for a determination of whether a petition or motion should be allowed. Also enclosed is a certified copy of the order of transfer and the docket sheet.

Please acknowledge receipt on the enclosed copy of this letter.