United States v. Perkins

Full title: UNITED STATES OF AMERICA, Plaintiff, v. BYRON PERKINS, Defendant.

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

Date published: May 21, 2020

Criminal Action No. 3:05-CR-059-CHB (W.D. Ky. May. 21, 2020)

Opinion

Criminal Action No. 3:05-CR-059-CHB

05-21-2020

UNITED STATES OF AMERICA, Plaintiff, v. BYRON PERKINS, Defendant.

cc: Movant/Defendant, pro se

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE EASTERN AND WESTERN DISTRICTS OF KENTUCKY

MEMORANDUM OPINION AND ORDER

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This matter is before the Court on Defendant Perkins's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [R. 177] Defendant filed two previous § 2255 motions in 2011 and 2016. [R. 129; 145; 147] Since Defendant's motion is a "second or successive motion" under § 2255, the Court must transfer it to the Sixth Circuit for the necessary certification as required by 28 U.S.C. § 2244. Section 2244(b)(3)(A) of Title 28 of the United States Code mandates: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Defendant (admittedly) has failed to obtain a panel certification prior to filing his current motion, and therefore this Court lacks jurisdiction to consider it. See In re Hanserd, 123 F.3d 922, 934 (6th Cir. 1997); [R. 179 p. 2]

Subsequent to filing his Motion, Defendant also filed a Motion to Withdraw his § 2255 Petition. Because the Sixth Circuit is the court with jurisdiction over this matter, the district court cannot entertain the motion to withdraw. Accordingly, and the Court being otherwise sufficiently advised,

IT IS HEREBY ORDERED as follows:

1. Defendants § 2255 Motion [R. 177] is TRANSFERRED to the Sixth Circuit Court of Appeals, pursuant to 28 U.S.C. § 1631, as a second or successive § 2255 motion. See In re Hanserd, 123 F.3d at 934 ("If either a motion requesting permission or a second or successive motion to vacate sentence is erroneously filed in district court, that court should transfer that motion to [the Sixth Circuit Court of Appeals] under 28 U.S.C. § 1631.") (citing In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)).

2. The Clerk of Court is DIRECTED to terminate Defendant's Motion to Withdraw Filing [R. 179].

This the 21st day of May, 2020.

/s/

CLARIA HORN BOOM,

UNITED STATES DISTRICT COURT JUDGE

EASTERN AND WESTERN DISTRICTS OF

KENTUCKY cc: Movant/Defendant, pro se