Hines v. Hayes et al, No. 4:2010cv00422 - Document 4 (E.D. Mo. 2010)
Court Description: OPINION, MEMORANDUM AND ORDER re: 3 , 1 , 2 ORDERED that movant's fifth successive motion under 28 U.S.C. 2255 is DISMISSED, without prejudice, for the reasons set forth in the cases Hines v. Devore, 4:09CV1236 HEA, Hines v. USA, 4:10CV41 HEA , Hines v. Hayes, 4:10CV39 HEA and Hines v. Hayes, 4:10CV282 HEA. FURTHER ORDERED that movant's motion to modify filing error [Doc. #2] is DENIED. FURTHER ORDERED that movant's motion for summary judgment [Doc. #3] is DENIED. FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will accompany this Order.. Signed by Honorable Henry E. Autrey on 5/4/10. (CEL)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION COREY LOUIS HINES, Movant, v. DAVID HAYES, et al., Respondents. ) ) ) ) ) ) ) ) ) No. 4:10CV422 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court on movant s fifth successive motion under 28 U.S.C. § 2255.1 The motion is similar to the successive motions that movant previously brought in the cases Hines v. Devore, 4:09CV1236 HEA, Hines v. USA, 4:10CV41 HEA, Hines v. Hayes, 4:10CV39 HEA, and Hines v. Hayes, 4:10CV282 HEA. As such, the Court will dismiss this action for the reasons set forth in those cases. Movant s motion to file this action as one brought pursuant to 28 U.S.C. § 2241 and his motion for summary judgment will be denied. Movant is reminded that because his action attempts to attack his conviction and sentence, it must be brought 1 Although movant filed the motion as a petition under § 2241, because movant is challenging the constitutionality of his conviction and sentence, he may not proceed under 28 U.S.C. § 2241. As such, the Court will construe the present action as one brought pursuant to 28 U.S.C. § 2255. under 28 U.S.C. § 2255, as he previously did in Hines v. United States, 4:07CV1884 HEA.2 The United States Court of Appeals for the Eighth Circuit has held that a writ of habeas corpus may issue under § 2241 only if it appears that the remedy under § 2255 is inadequate or ineffective. It matters not that his request for § 2255 relief has already been denied previously, as a § 2255 motion is not inadequate merely because § 2255 relief has already been denied. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000). Movant simply cannot be afforded the relief he seeks under § 2241, which has very limited means for this Court s jurisdiction. Accordingly, IT IS HEREBY ORDERED that movant s fifth successive motion under 28 U.S.C. § 2255 is DISMISSED, without prejudice, for the reasons set forth in the cases Hines v. Devore, 4:09CV1236 HEA, Hines v. USA, 4:10CV41 HEA, Hines v. Hayes, 4:10CV39 HEA and Hines v. Hayes, 4:10CV282 HEA. IT IS FURTHER ORDERED that movant s motion to modify filing error [Doc. #2] is DENIED. 2 However, as previously noted, movant is barred from filing a successive § 2255 unless he receives permission from the Eighth Circuit Court of Appeals to do so. 28 U.S.C. § 2244(b)(3)(A). -2- IT IS FURTHER ORDERED that movant s motion for summary judgment [Doc. #3] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will accompany this Order. Dated this 4th day of May, 2010. HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE -3-
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