Oiler v. United States of America, No. 5:2008cv00995 - Document 287 (S.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION AND ORDER: Plaintiff's 285 2255 MOTION is DENIED as untimely and successive. Signed by Judge Thomas E. Johnston on 9/28/2009. (cc: attys; any unrepresented party) (mls)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION DOROTHY ANN OILER, Petitioner, v. CIVIL ACTION NO. 5:08-cv-00995 (Criminal No. 5:06-cr-00098-02) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Pending before the Court is pro se Plaintiff Dorothy Oiler s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody [Docket 285],* which was filed May 5, 2009. Plaintiff has moved for reconsideration of the judgment entered April 21, 2009 [Docket 248], dismissing as untimely her Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Plaintiff now argues that the Court should consider the merits of her current § 2255 claim because she was not aware of the one-year period of limitation governing the filing of motions for collateral relief under 28 U.S.C. § 2255. This is the same argument she made in her initial § 2255 motion. 28 U.S.C. § 2255 states that [a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . Plaintiff s instant Motion is successive because she previously filed a § 2255 motion. Plaintiff has not obtained a certification * Unless otherwise noted, docket numbers are the same in both Case Nos. 5:08-cv-00995 and 5:06cr-00098-02. from the Court of Appeals for the Fourth Circuit for her motion as required by §2255. Therefore, the Court is not required to entertain this second motion. See United States v. King, 301 F. App x. 215 (4th. Cir. 2008). Additionally, proper dismissal of a prior § 2255 motion as untimely renders successive any future § 2255 motions challenging the same conviction or sentence. Stapleton v. United States, 392 F. Supp. 2d 754 (W.D. Va. 2005). Plaintiff s first § 2255 motion was dismissed as untimely; therefore, the current § 2255 motion is successive. Because Plaintiff did not meet the requirements under 28 U.S.C. § 2255 for a successive § 2255 motion, her current motion is foreclosed by the statute. Accordingly, Plaintiff s current § 2255 motion [Docket 285] is DENIED as untimely and successive. A separate Judgment Order will enter this day implementing the rulings contained herein. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 2 SEPTEMBER 28, 2009

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