Opinion
CAUSE NO.: 1:12-CR-88-TLS
12-10-2018
UNITED STATES OF AMERICA v. PEDRO GARZA
OPINION AND ORDER
The Defendant, Pedro Garza, seeks permission from this Court to proceed under 28 U.S.C. § 2255 [ECF No. 179]. The Defendant's previous Motion to Correct Sentence Under 28 U.S.C. § 2255 [ECF No. 165] was withdrawn when the Defendant determined that it would be futile for him to continue with his collateral attack after the Supreme Court decided, in Beckles v. United States, 137 S. Ct. 886 (2017), that the United States Sentencing Guidelines are not subject to due process vagueness challenges.
The Defendant may not file a second or successive habeas petitions unless he first obtains certification to do so from the court of appeals. See 28 U.S.C. § 2255(h) (providing that a "second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals"); Holt v. United States, 843 F.3d 720, 723 (7th Cir. 2016) (stating that "Section 2255(h) permits a court of appeals to authorize a successive collateral attack" (emphasis added)); Harris v. Cotton, 296 F.3d 578, 579 (7th Cir. 2002) (noting that it is the court of appeals rather than that of the district court that must grant the permission to file a second or successive petition for habeas corpus); see also Vitrano v. United States, 643 F.3d 229, 233 (7th Cir. 2011) ("A § 2255 motion need not be adjudicated on the merits to 'count' as a prisoner's first motion for AEDPA purposes.") (citing Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997)).
Based on the foregoing, the Motions seeking permission from this Court [ECF No. 177 (Spanish version), ECF No. 179 (English version)] are DISMISSED as filed in the wrong court.
SO ORDERED on December 10, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT