Opinion
Case No. 09-Cr-310
05-13-2016
UNITED STATES OF AMERICA, Plaintiff, v. CHRISTINE R. PERKINS, Defendant.
DECISION AND ORDER
Pro se Defendant Christine R. Perkins inquires regarding the impact of Welch v. United States, 136 S.Ct. 1257 (2016) and Johnson v. United States, 135 S.Ct. 2551 (2015) on her sentence, and requests permission to file a successive 28 U.S.C. § 2255 motion raising Welch and Johnson issues. (ECF Nos. 396, 397.)
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), which establishes a "'gatekeeping' mechanism for the consideration of 'second or successive federal habeas corpus applications,'" a prisoner must ask the appropriate court of appeals to direct the district court to consider such an application. § 2244(b). Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (citation omitted). Without that authorization, the district court lacks jurisdiction over the petition. Kramer v. United States, 797 F.3d 493, 498 (7th Cir. 2015).
Perkins has filed her request to file a successive motion with the wrong court; however, for the following reasons the error is immaterial and the request is dismissed. On January 23, 2012, Perkins filed a § 2255 motion — opened as Case No. 12-C-64. On September 18, 2014, the Court approved Perkins' request to withdraw the motion, and the civil action was terminated. Consequently, Perkins' proposed § 2255 motion is not a successive petition for purposes of AEDPA. See Martinez-Villareal, 523 U.S. at 637-38.
In order to proceed further with Welch and Johnson issues, Perkins must file any § 2255 motion on this District's form. See Civil L.R. 9 (E.D. Wis.). A copy of the proper form will be sent to Perkins. Perkins is advised that she must include all contentions she intends to raise by such § 2255 motion, or she may be foreclosed from raising them by any subsequent successive § 2255 motion.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Perkins' request for leave to file a successive petition (ECF No. 397) is DISMISSED; and
The Clerk of Court is DIRECTED to send a copy of this District's § 2255 motion form to Perkins with her copy of this Decision and Order.
Dated at Milwaukee, Wisconsin, this 13th day of May, 2016.
BY THE COURT:
/s/ _________
HON. RUDOLPH T. RANDA
U.S. District Judge