Opinion
Cause No. CR 11-27-BU-DWM CV 13-88-BU-DWM
12-13-2013
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ANGELLA LEANN PARKER, Defendant/Movant.
ORDER DISMISSING MOTION AND
DENYING CERTIFICATE OF
APPEALABILITY
On December 10, 2013, Defendant Angella Parker filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. Parker is a federal prisoner proceeding pro se.
The motion is Parker's second under § 2255. See Mot. § 2255 (Doc. 113); Order (Doc. 133). The Court lacks jurisdiction to consider it. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
The Court of Appeals would have jurisdiction, but a transfer would not be in the interests of justice, 28 U.S.C. § 1631, because the petition lacks merit. Parker claims that the Supreme Court's recent decision in Alleyne v. United States, _ U.S. _, 133 S. Ct. 2151 (2013), provides her a right to relief. It does not. She was subject to a statutory mandatory minimum at sentencing, but the only fact giving rise to it was the quantity of methamphetamine involved in her offense. 21 U.S.C. § 841 (b)(1)(B)(i); Indictment (doc. 1) at 2-3. Parker admitted she was responsible for more than 500 grams of methamphetamine, see Change of Plea Tr. (Doc. 128) at 21:9-12, which satisfies Alleyne, 133 S. Ct. at 2155, and Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000). Alleyne, therefore, does not confer any new right or result in Parker's case.
A certificate of appealability is not warranted. There is no doubt about either the procedural posture of this case, Gonzalez v. Thaler, _ U.S. _, 132 S. Ct. 641, 648 (2012) or its lack of merit, 28 U.S.C. § 2253(c)(2).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Parker's second motion under 28 U.S.C. § 2255 (Doc. 137) is DISMISSED as an unauthorized second motion;
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Parker files a Notice of Appeal;
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 13-88-BU-DWM are terminated and shall close the civil file by entering a judgment of dismissal.
___________________
Donald W. Molloy
United States District Judge