Opinion
Cause No. CR 03-88-BLG-SPW Cause No. CV 19-95-BLG-SPW
09-17-2019
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ROBERT C. LARSON, Defendant/Movant.
ORDER DISMISSING AND TRANSFERRING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On September 16, 2019, Defendant/Movant Larson filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Larson is a federal prisoner proceeding pro se.
Larson filed a § 2255 motion on February 12, 2007 (Doc. 143). The motion and a certificate of appealability were denied in the District Court on March 19, 2008 (Doc. 148). The Court of Appeals denied a certificate of appealability (Doc. 152) and the United States Supreme Court denied Larson's petition for writ of certiorari (Doc. 155).
The Court of Appeals has not authorized Larson to file a second § 2255 motion in this Court. See 28 U.S.C. §§ 2255(h), 2244(b). The motion must be dismissed for lack of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
A certificate of appealability is denied because the case is clearly controlled by Burton. See Gonzalez v. Thaler, 565 U.S. 134, 140 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The Court of Appeals would have jurisdiction, however, to entertain an application for leave to file a second or successive motion. See 28 U.S.C. §§ 1631, 2244(b)(3)(A). Larson attached an application to his motion. The motion will be transferred.
Accordingly, IT IS ORDERED:
1. Larson's motion under 28 U.S.C. § 2255 (Doc. 180) is DISMISSED as an unauthorized second or successive motion and TRANSFERRED to the Court of Appeals.
2. A certificate of appealability is DENIED. The clerk shall immediately process the appeal if Larson files a notice of appeal.
3. The clerk shall ensure that all pending motions are terminated and shall close the civil file by entering, by separate document, a judgment of dismissal.
DATED this 17th day of September, 2019.
/s/_________
Susan P. Watters
United States District Court