Opinion
Case No. 8:10-CV-1907-T-30MAP, Crim Case No. 8:08-CR-435-T-30MAP.
August 30, 2010
ORDER
This matter is before the Court for consideration of Petitioner's motion to vacate, set aside, or correct an allegedly illegal sentence filed pro se pursuant to 28 U.S.C. § 2255 (CV Dkt. 1). A motion to vacate must be reviewed prior to service on the United States. See Rule 4 of the Rules Governing § 2255 Cases. If the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the motion is properly denied without a response from the United States. 28 U.S.C. § 2255(b).
Petitioner previously filed a request for collateral relief pursuant to 28 U.S.C. § 2255, which was denied on July 27, 2010. See Cummings v. United States, Case No. 8:09-CV-1606-T-30MAP (M.D. Fla. 2009). "[A] second or successive [§ 2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. § 2255. See 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously sought collateral relief pursuant to § 2255 and he has not demonstrated that he has obtained permission from the Eleventh Circuit to file a second or successive motion, this Court is without jurisdiction to entertain the instant § 2255 motion. This case will, therefore, be dismissed without prejudice to allow Petitioner the opportunity to seek said authorization.
ACCORDINGLY, the Court ORDERS that:
1. The motion to vacate, set aside, or correct an illegal sentence is DISMISSED without prejudice (CV Dkt. 1).
2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for leave to file a second or successive § 2255 motion under 28 U.S.C. § 2244(b).
3. The Clerk shall terminate any pending motions and close this case.
DONE and ORDERED in Tampa, Florida.