Opinion
Civ. 1:24-cv-01162-STA-jay Cr. 1:88-cr-10054-JDT
08-12-2024
DALE CONRAD McQUISTON, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER TRANSFERRING PETITION/MOTION TO THE COURT OF APPEALS AS A SECOND OR SUCCESSIVE PETITION
S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.
Petitioner Dale Conrad McQuiston, inmate number 11697-076, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 USC §2255. (ECF No. 1.) The §2255 Motion is before the Court for preliminary review. See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(b). For the following reasons, the Motion is TRANSFERRED to the Sixth Circuit Court of Appeals.
Movant/Defendant McQuiston previously filed Dale Conrad McQuiston v. United States of America, 2:10-cv-02542-STA-dkv (W.D. Tenn. Sept. 25, 2019). In that matter, McQuiston's motion pursuant to 28 U.S.C. § 2255 was denied on September 24, 2019, and judgment was subsequently entered. (ECF Nos. 23, 24.)
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, Title I, § 102, 110 Stat. 1220 (Apr. 24, 1996), amended 28 U.S.C. §§ 2244(b) and 2255 to preclude the filing of any subsequent § 2255 motion absent permission from the Court of Appeals for the Circuit in which the district court is located. Under In re Sonshine, 132 F.3d 1133, 1135 (6th Cir. 1997), the AEDPA amendments bar a prisoner from filing a second § 2255 motion unless those amendments would have an impermissibly retroactive effect on a claim for relief under § 2255. Under In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), “when a second or successive . . . § 2255 motion is filed in the district court without § 2244(b)(3) authorization from [the Sixth Circuit], the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.” Id.
Because Movant/Defendant must obtain a certification from the Sixth Circuit Court of Appeals before filing this second or successive motion, it is hereby ORDERED that the Clerk of Court transfer this motion to the United States Court of Appeals for the Sixth Circuit for a determination of whether Movant/Defendant can file a second or successive motion to vacate sentence pursuant to 28 U.S.C. § 2255.
IT IS SO ORDERED.