Perry v. U.S., 18-13357. (2019)
Court: District Court, E.D. Michigan
Number: infdco20190207b65
Visitors: 11
Filed: Feb. 06, 2019
Latest Update: Feb. 06, 2019
Summary: ORDER TRANSFERRING SECOND OR SUCCESSIVE 2255 PETITION TO THE SIXTH CIRCUIT COURT OF APPEALS SEAN F. COX , District Judge . On October 26, 2018, Defendant Gary Perry filed a Motion to Vacate Sentence, pursuant to 28 U.S.C. 2255. (ECF No. 183). A defendant seeking to file a second or successive motion under 28 U.S.C. 2255 must first ask the appropriate court of appeals for an order authorizing the district court to consider the petition. See 28 U.S.C. 2244(b)(3)(A); 28 U.S.C. 22
Summary: ORDER TRANSFERRING SECOND OR SUCCESSIVE 2255 PETITION TO THE SIXTH CIRCUIT COURT OF APPEALS SEAN F. COX , District Judge . On October 26, 2018, Defendant Gary Perry filed a Motion to Vacate Sentence, pursuant to 28 U.S.C. 2255. (ECF No. 183). A defendant seeking to file a second or successive motion under 28 U.S.C. 2255 must first ask the appropriate court of appeals for an order authorizing the district court to consider the petition. See 28 U.S.C. 2244(b)(3)(A); 28 U.S.C. 225..
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ORDER TRANSFERRING SECOND OR SUCCESSIVE § 2255 PETITION TO THE SIXTH CIRCUIT COURT OF APPEALS
SEAN F. COX, District Judge.
On October 26, 2018, Defendant Gary Perry filed a Motion to Vacate Sentence, pursuant to 28 U.S.C. § 2255. (ECF No. 183).
A defendant seeking to file a second or successive motion under 28 U.S.C. § 2255 must first ask the appropriate court of appeals for an order authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255(h). When a defendant files a second or successive motion in the district court without authorization from the court of appeals, the district court must transfer the motion to the court of appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
The Court concludes that Perry's October 26, 2018 § 2255 Motion constitutes a "second or successive petition" within the meaning of 28 U.S.C. § 2244(b)(3). Petitioner has not, however, obtained authorization from the Sixth Circuit to file a second or successive petition in this Court. Thus, this Court lacks jurisdiction over this successive § 2255 motion and the matter must be transferred to the Sixth Circuit.
Accordingly, IT IS ORDERED that the Clerk of the Court shall TRANSFER this case to the United States Court of Appeals for the Sixth Circuit.
IT IS SO ORDERED.
Source: Leagle
