Opinion
Cause No. CR 09-67-BLG-SPW Cause No. CV 16-97-BLG-SPW
06-23-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JOSHUA ROBERT LUDTKE, Defendant/Movant.
ORDER TRANSFERRING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On June 17, 2016, Defendant Ludtke, acting pro se, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
As Ludtke says, the instant motion is his first § 2255 motion under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). But it is still his second motion under § 2255. Ludtke filed his first § 2255 motion on September 7, 2011. See Mot. § 2255 (Doc. 28). The motion and a certificate of appealability were denied on December 12, 2011. See Order (Doc. 45). Ludtke did not appeal.
The Court of Appeals has not authorized Ludtke to file a second § 2255 motion in this Court, see 28 U.S.C. §§ 2255(h), 2244(c), so this Court lacks jurisdiction, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
The Court of Appeals, however, has jurisdiction to hear an application for leave to file a second or successive motion. 28 U.S.C. § 2244(b)(3). Because Ludtke makes a claim under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), and because he might be qualified for relief, it is in the interests of justice to transfer his motion to the Court of Appeals to cure this Court's want of jurisdiction. 28 U.S.C. § 1631.
A certificate of appealability is denied because this Court clearly lacks jurisdiction and Ludtke's opportunity to file under Johnson is protected by transferring his motion to the Court of Appeals. Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Ludtke's § 2255 motion (Doc. 46) is DISMISSED in this Court and TRANSFERRED to the Court of Appeals as an application for leave to file a second or successive § 2255 motion in this Court.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Ludtke files a Notice of Appeal;
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 16-97-BLG-SPW are terminated and shall close the civil file by entering a judgment of dismissal and transfer to the Court of Appeals.
DATED June 23rd , 2016.
/s/_________
Susan P. Watters
United States District Court