Washington v. United States of America, No. 2:2015cv02152 - Document 4 (C.D. Ill. 2015)

Court Description: OPINION entered by Judge Harold A. Baker on 7/17/15. Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence 1 is dismissed for lack of jurisdiction. A certificate of appealability is DENIED. Petitioner's Motion to Request Counsel 3 is MOOT. This case is terminated. (KM, ilcd) Modified on 7/17/2015 change to Opinion (KM, ilcd).

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Washington v. United States of America Doc. 4 E-FILED Friday, 17 July, 2015 02:44:25 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION ____________________________________________________________________________ CEDRIC WASHINGTON, ) ) ) ) ) ) ) ) Petitioner, v. UNITED STATES OF AMERICA, Respondent. Case No. 15-CV-2152 OPINION On July 6, 2015, Petitioner, Cedric Washington, filed a pro se Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) and a Motion to Request Counsel (#3). Because this court concludes that this is a second or successive Motion, no response is needed from the Government. This court concludes that Petitioner’s Motion (#1) must be dismissed for lack of jurisdiction. ANALYSIS Petitioner has already filed a Motion under 28 U.S.C. § 2255. On February 16, 2007, in Case No. 07-CV-2039, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. On April 30, 2007, United States District Judge Michael P. McCuskey entered an Opinion and denied Petitioner’s Motion. Petitioner appealed, and the Seventh Circuit entered an Order denying Petitioner’s request for a certificate of appealability on January 17, 2008. On July 6, 2015, Petitioner filed his Motion under § 2255 in this case. Because of Judge McCuskey’s retirement from his position as a District Court Judge, the case has been assigned to this court. In his lengthy pro se Motion (#1), Petitioner has raised arguments not Dockets.Justia.com included in his previous Motion under § 2255. However, Petitioner’s Motion, brought pursuant to § 2255, “is subject to the requirement that second or successive motions under this statute must be authorized by the court of appeals.” See United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007). Section 2255(h) provides that a “second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h). Accordingly, a district court has no jurisdiction to hear a second or successive motion under § 2255 unless the Seventh Circuit Court of Appeals has issued an order authorizing the district court to consider the motion. See 28 U.S.C. § 2244(b)(3)(A); Carraway, 478 F.3d at 849; Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). “A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing.” Nunez, 96 F.3d at 991 (emphasis in original). In this case, the Seventh Circuit has not authorized the filing of a second or successive motion pursuant to § 2255. Consequently, this court is without jurisdiction to entertain Petitioner’s Motion and it must be dismissed. See Nunez, 96 F.3d at 991. CERTIFICATE OF APPEALABILITY Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this court denies a certificate of appealability in this case. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim,” which has happened here, a certificate of appealability should issue only when the prisoner shows both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable 2 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). This court concludes that jurists of reason would not find it debatable whether Petitioner’s Motion states a valid claim of the denial of a constitutional right and also concludes that jurists of reason would not find it debatable whether this court correctly found it lacks jurisdiction over Petitioner’s Motion because it is a second or successive motion pursuant to § 2255. IT IS THEREFORE ORDERED THAT: (1) Petitioner’s pro se Motion to Vacate, Set Aside or Correct Sentence (#1) is dismissed for lack of jurisdiction. (2) A certificate of appealability is DENIED. (3) Petitioner’s Motion to Request Counsel (#3) is MOOT. (4) This case is terminated. ENTERED this 17th day of July, 2015. /s/Harold A. Baker _________________________________________________ HAROLD A. BAKER U.S. DISTRICT JUDGE 3

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