Opinion
Civil Action No. 3:96cv159-D, Criminal Cause No. 3:89cr39-D
November 27, 1996
MEMORANDUM OPINION
The petition of Woodrow Beamer for habeas relief pursuant to 28 U.S.C. § 2255 came on for consideration by this court. Mr. Beamer has filed with this court two previous motions for habeas relief under 28 U.S.C. § 2255 and this court has denied both petitions. Beamer v. United States. Civil Action No. WC91-102-G (N.D. Miss. Aug. 7, 1991); Beamer v. United States. Civil Action No. 3:94cv43-D (N.D. Miss. Mar. 18, 1994). Based upon these prior petitions and Mr. Beamer's failure to obtain permission to file the present petition, the United States moves this court to dismiss this cause.
On April 24, 1996, the President of the United States signed into law amendments to 28 U.S.C. § 2255 as part of the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Those amendments provide that a "second or successive motion" by a habeas petitioner under § 2255 "must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. § 2255 (1996 Supp.). Section 2244 provides in relevant part that:
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.28 U.S.C. § 2254(b)(3)(A) (1996 Supp.). There is no evidence that Mr. Beamer has obtained such authorization from the Fifth Circuit Court of Appeals to file the present petition, and he is explicitly required to do so before this court may even consider his petition. In re Sylvester Tolliver, 97 F.3d 89, 89 (5th Cir. 1996). This cause shall be dismissed without prejudice so that Mr. Beamer may petition for such permission from the Fifth Circuit.
A separate order in accordance with this opinion shall issue this day.
ORDER DISMISSING CAUSE WITHOUT PREJUDICE
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:) the motion of the United States to dismiss this action is hereby GRANTED;
2) this cause is hereby DISMISSED without prejudice so that the petitioner may request from the Fifth Circuit Court of Appeals permission to institute this "second or successive" petition for habeas relief with this court.
SO ORDERED.