Opinion
Cause No. CR 04-35-M-DWM Cause No. CV 16-84-M-DWM
06-28-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. SHANE DOUGLAS HOSKINS, Defendant/Movant.
ORDER DISMISSING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This matter comes before the Court on Defendant/Movant Hoskins' motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Hoskins seeks relief under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015).
Hoskins has already litigated to conclusion one motion under 28 U.S.C. § 2255. See Minutes (Doc. 337); Order (Doc. 339); Order (Doc. 352). This Court lacks jurisdiction to consider the instant unauthorized motion under 28 U.S.C. § 2255. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
Hoskins timely filed an application in the Court of Appeals seeking leave to file a second or successive motion in this Court. See Hoskins v. United States, No. 16-72049 (9th Cir. filed June 23, 2016). Therefore, it is not necessary to transfer the motion to the Court of Appeals. 28 U.S.C. § 1631.
A certificate of appealability is not warranted. Burton is plainly controlling. Further, Hoskins' timely filing in the Court of Appeals means he will not be prejudiced by dismissal of his motion in this Court. See Orona v. United States, No. 16-70568, slip op. at 3 (9th Cir. June 22, 2016).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Hoskins' motion under 28 U.S.C. § 2255 (Doc. 418) is DISMISSED for lack of jurisdiction.
2. A certificate of appealability is DENIED. The Clerk shall immediately process the appeal if Hoskins files a notice of appeal.
3. The clerk shall ensure that all pending motions in this matter and in CV 16-84-M-DWM are terminated and shall close the civil file by entering a judgment of dismissal.
DATED this 28th day of June, 2016.
/s/_________
Donald W. Molloy
United States District Court