Opinion
Criminal Case No. 12-20218 Civil Case No. 16-12986
07-21-2017
United States of America, Plaintiff/Respondent, v. D-5 Adriane Foster, Defendant/Petitioner.
ORDER TRANSFERRING SECOND OR SUCCESSIVE § 2255 PETITION TO THE SIXTH CIRCUIT COURT OF APPEALS
Pursuant to a Rule 11 Plea Agreement, Petitioner Adriane Foster ("Foster") pleaded guilty to robbery and firearms offenses in Criminal Case Number 12-20218. This Court sentenced Foster to a total term of 240 months imprisonment.
Foster did not file a direct appeal.
On August 16, 2016, Foster filed a pro se Motion to Vacate under 28 U.S.C. § 2255, based upon Johnson v. United States, 135 S.Ct. 2251 (2015). In an Opinion & Order issued on March 29, 2017, this Court denied that motion and declined to issue a certificate of appealability.
On June 21, 2017, Foster filed another motion seeking to vacate his sentence pursuant to § 2255. (Docket Entry No. 433). This second motion states that it is also based upon Johnson v. United States, 135 S.Ct. 2251 (2015).
A defendant seeking to file a second or successive motion under 28 U.S.C. § 2255 must first ask the appropriate court of appeals for an order authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255(h). When a defendant files a second or successive motion in the district court without authorization from the court of appeals, the district court must transfer the motion to the court of appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
The Court concludes that Foster's June 21, 2017 §2255 Motion constitutes a "second or successive petition" within the meaning of 28 U.S.C. § 2244(b)(3). Foster has not, however, obtained authorization from the Sixth Circuit to file a second or successive petition in this Court. Thus, this Court lacks jurisdiction over this successive § 2255 motion and the matter must be transferred to the Sixth Circuit.
Accordingly, IT IS ORDERED that the Clerk of the Court shall TRANSFER the matter to the United States Court of Appeals for the Sixth Circuit.
IT IS SO ORDERED. Dated: July 21, 2017
s/Sean F. Cox
Sean F. Cox
U. S. District Judge I hereby certify that on July 21, 2017, the foregoing document was served on counsel of record via electronic means and upon Adriane Foster via First Class mail at the address below: Adriane Foster 48088039
MCDOWELL
FEDERAL CORRECTIONAL INSTITUTION
P.O.BOX 1009
WELCH, WV 24801
s/J. McCoy
Case Manager