Elawyers Elawyers
Washington| Change

Boswell v. United States of America, 16-4085.Cr (2017)

Court: District Court, D. South Dakota Number: infdco20171130j09 Visitors: 2
Filed: Nov. 29, 2017
Latest Update: Nov. 29, 2017
Summary: ORDER LAWRENCE L. PIERSOL , District Judge . On June 16, 2016, Dana Boswell filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255. (Doc. 1.) Citing Johnson v. United States, 135 S.Ct. 2551 (2015), Boswell argued that the residual clause of USSG 4B1.1(a)(2) is unconstitutionally vague, and that he should not have been sentenced as a career offender in 1999. Because it was his second 2255 motion, Boswell also filed a motion in the Eighth Circuit for aut
More

ORDER

On June 16, 2016, Dana Boswell filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Citing Johnson v. United States, 135 S.Ct. 2551 (2015), Boswell argued that the residual clause of USSG § 4B1.1(a)(2) is unconstitutionally vague, and that he should not have been sentenced as a career offender in 1999. Because it was his second § 2255 motion, Boswell also filed a motion in the Eighth Circuit for authorization to file a second or successive habeas petition. The Eighth Circuit's authorization is a prerequisite under 28 U.S.C. § 2244(b)(3) to the filing of a second or successive habeas petition. Boswell asked this Court to hold his petition in abeyance until such time the Eighth Circuit rules on his application to file the second motion. This Court granted the motion, stating that Boswell's § 2255 motion will be held in abeyance until the Eighth Circuit rules on his application to file a second or successive motion, and that the § 2255 motion will be dismissed for lack of jurisdiction if the Eighth Circuit denies authorization for its filing. See, e.g., Boyd v. United States, 304 F.3d 813 (8th Cir. 2002)("district court should dismiss [second or successive habeas petition] for failure to obtain authorization from the Court of Appeals").

On November 14, 2017, the Eighth Circuit issued a judgment denying Boswell's petition for authorization to file a successive habeas application, and the Court's mandate was issued that same day. Accordingly,

IT IS ORDERED that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (doc. 1) is dismissed.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer