Austin v. United States of America, No. 2:2009cv00247 - Document 4 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER dismissing 1 Motion to vacate, set aside, or correct sentence (2255) without prejudice as successive. The Clerk shall enter judgment accordingly, file a copy of the judgment in the associated criminal case, Case No. 2:98-cr-127-FTM-29DNF, and close the civil case. Signed by Judge John E. Steele on 5/7/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION LUTHER LEON AUSTIN, Petitioner, vs. Civil Case No. 2:09-cv-247-FtM-29DNF Case No. 2:98-cr-127-FTM-29DNF UNITED STATES OF AMERICA, Respondent. ___________________________________ OPINION AND ORDER This matter comes before the Court on petitioner s Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1)1 filed on April 24, 2009. For the reasons stated herein, the Court finds that the record conclusively shows that prisoner is not entitled to relief and therefore notice to the government and a hearing are not required. See 28 U.S.C. § 2255(b). I. On November 12, 1998, the grand jury returned a one count Indictment (Doc. #3) charging defendant with the armed robbery of NationsBank. On September 21, 1999, defendant appeared before the magistrate judge and pled guilty to Count One of the Indictment pursuant to a Plea Agreement (Doc. #22). 1 The plea was accepted by References to documents in the civil case will have the prefix Cv. Doc. whereas references to documents in the criminal case will simply be referred to as Doc. . the district court and defendant was sentenced on January 21, 2000 to 198 months of imprisonment, 60 months supervised release, and restitution in the amount of $20,058.00. See Judgment (Doc. #30). On January 31, 2000, defendant filed a Notice of Appeal (Doc. #31). On May 10, 2001, the Eleventh Circuit Court of Appeals issued a mandate affirming defendant s conviction and sentence based on counsel s Anders2 brief and after due consideration of Apprendi3. On September 8, 2003, defendant filed a Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. #49). On November 16, 2004, the Court entered an Opinion and Order (Doc. #51) dismissing the Motion as untimely. Defendant appealed and both the district and appellate court denied a certificate of appealability. On January 30, 2006, the Eleventh Circuit Court of Appeals denied defendant s Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255 (Doc. #59). Defendant has now filed another petition. II. Under 28 U.S.C. § 2255(h), [a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered 2 Anders v. California, 386 U.S. 738 (1967). 3 Apprendi v. New Jersey, 530 U.S. 466 (2000). -2- 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. In this case, a motion for a writ of habeas corpus is not available to defendant because permission from the Eleventh Circuit is required to file a second or successive § 2255 motion, and no such permission has been sought or granted in this case. Accordingly, it is now ORDERED: 1. Petitioner s Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. #1) is DISMISSED without prejudice as successive. 2. The Clerk shall enter judgment accordingly and close the civil case. The Clerk is further directed to file a copy of this Opinion and Order and the civil judgment in the criminal case file. DONE AND ORDERED at Fort Myers, Florida, this May, 2009. Copies: Petitioner AUSA -3- 7th day of

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