United States v. Barnett

Full title: UNITED STATES OF AMERICA, Plaintiff, v. ROBERT HERALD BARNETT, Defendant.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

Date published: Mar 21, 2017

Criminal Action No. 5:09-CR-67-JMH-EBA-1 (E.D. Ky. Mar. 21, 2017)

Opinion

Criminal Action No. 5:09-CR-67-JMH-EBA-1

03-21-2017

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT HERALD BARNETT, Defendant.

Joseph M. Hood Senior U.S. District Judge

MEMORANDUM OPINION & ORDER

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This matter is before the Court upon Robert Herald Barnett's Petition for Writ of Audita Querela [DE 187]. In his motion, Petitioner takes the position that it is appropriate to seek a writ of audita querela instead of a writ under 28 U.S.C. § 2255 in this instance, because the Supreme Court did not make its decision in United States v. Booker, 543 U.S. 220 (2005), retroactive such that relief from the sentence imposed upon him might be obtained upon a for a writ of habeas corpus under 28 U.S.C. § 2255. The Court disagrees because Booker is no more retroactively applicable in this instance, notwithstanding what writ Petitioner seeks. He challenges his conviction, and, thus, Plaintiff seeks a successive habeas petition under § 2255. See Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (noting that "courts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255."). He has not, however, received authorization from the Sixth Circuit Court of Appeals to file it. Because Defendant has previously sought relief in this matter by means of a motion under § 2255 [DE 98], which relief was denied [DE 166] by this Court, this matter must be transferred to the United States Court of Appeals for the Sixth Circuit pursuant to In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam), for review and certification as a second or successive motion. See 28 U.S.C. §§ 2244(a), 2255(h).

Accordingly, IT IS ORDERED:

(1) that the Clerk shall TRANSFER Defendant's Petition for Writ of Audita Querela [DE 187], construed as a Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, to the United States Court of Appeals for the Sixth Circuit for further proceedings in keeping with In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).

(2) that the Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET.

This is the 21st day of March, 2017.

Signed By:

Joseph M . Hood

Senior U.S. District Judge