Opinion
No. 1:16-CV-189 RWS
08-01-2016
CHRISTOPHER ANDREW WELKER, Movant, v. UNITED STATES OF AMERICA, Respondent
MEMORANDUM AND ORDER OF TRANSFER
This matter is before the Court on movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. In the instant motion, movant claims that the new Supreme Court case of Johnson v. United States, 135 S.Ct. 2551 (2015), decided in June of 2015, should be applied to his case in order to reduce his sentence. The motion is a "second or successive motion" within the meaning of 28 U.S.C. §§ 2244 & 2255 but has not been certified by the United States Court of Appeals for the Eighth Circuit as required by the AEDPA.
Under 28 U.S.C. § 2255:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--28 U.S.C. § 2255(h).
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Movant submitted his successive § 2255 motion without the required certification. When a second or successive habeas petition is filed in a district court without the authorization of the court of appeals, the court should dismiss it, or, in its discretion, transfer the motion to the appellate court so long as it is in the interests of justice. Boyd v. U.S., 304 F.3d 813, 814 (8th Cir. 2002).
Accordingly,
IT IS HEREBY ORDERED that the instant motion to vacate is DENIED, without prejudice, because movant did not obtain permission from the court of appeals to bring the motion in this Court. See 28 U.S.C. § 2255(h).
IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631.
IT IS FURTHER ORDERED that movant's motion for appointment of counsel [ECF No. 5] is MOOT.
IT IS FURTHER ORDERED that the Clerk is directed to forward a copy of this Order to the Federal Public Defender.
Dated this 1st day of August, 2016.
/s/_________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE