United States v. Miller

Full title: UNITED STATES OF AMERICA v. GARLAND D. MILLER

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

Date published: Dec 7, 2011

CRIMINAL ACTION NO. 07-50032-01 (W.D. La. Dec. 7, 2011)

Opinion

CRIMINAL ACTION NO. 07-50032-01 CIVIL ACTION NO. 11-246

12-07-2011

UNITED STATES OF AMERICA v. GARLAND D. MILLER

S. MAURICE HICKS

JUDGE , JR.

MEMORANDUM ORDER

Before the Court is Defendant Garland D. Miller's ("Miller") Motion for Bail and Motion to Stay Sentence (Record Document 151), as well as Miller's Motion for Expedited Judgment (Record Document 152).

Miller seeks bail and a stay of his sentence "pending a decision on Petitioner's Motion of §2255. (Record Document 151-2). This Court ruled on Miller's §2255, denying Miller's motion. (Record Document 147). Therefore, the motions before this Court are moot as Miller's §2255 is no longer pending.

Further, it is possible that this motion may be construed as a second or successive, §2255. Miller raises many arguments for his immediate release in these motions that he raised in his §2255. He also presents some unique arguments justifying a stay of his sentence.

Before a movant may proceed with a second or successive § 2255 motion, a court of appeals panel must first certify that it (1) contains "newly discovered evidence that ... would be sufficient to establish ... that no reasonable factfinder would have found the movant guilty; or (2) a new rule of constitutional law, made retroactive to collateral review by the Supreme Court, that was previously unavailable." These restrictions eliminate "the need for the district courts to repeatedly consider challenges to the same conviction unless an appellate panel first f[in]d[s] that those challenges ha [ve] some merit."

Herrera-Pina v. U.S., 2010 WL 3420359, *2 (W.D. Tex. 2010).Therefore, if this is indeed a successive §2255 motion, it too is denied as Miller has not received certification from the Fifth Circuit Court of Appeals.

Accordingly,

RED that Garland D. Miller's Motion for Bail and Motion to Stay Sentence (Record Document 151), as well as Miller's Motion for Expedited Judgment (Record Document 152) are hereby DENIED AS MOOT.

IT IS FURTHER ORDERED that to whatever extent this motion is to be construed as a second or successive §2255 motion, it is DENIED.

THUS DONE AND SIGNED at Shreveport, Louisiana, this the 6th day of December, 2011.

S. MAURICE HICKS, JR.

UNITED STATES DISTRICT JUDGE