Harris v. USA, No. 4:2016cv00600 - Document 2 (E.D. Mo. 2016)

Court Description: OPINION MEMORANDUM AND ORDER 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 I S 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 the Clerk is directed to forward a copy of this Order to the Federal Public Defender. Signed by District Judge Henry Edward Autrey on 5/2/16. cc: FDP/USCA(CLA)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ERIC HARRIS, Movant, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) No. 4:16CV600 HEA OPINION, MEMORANDUM AND ORDER 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 Asecond 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. See Harris v. United States, 4:14CV1323 HEA. 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-(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. 1 28 U.S.C. § 2255(h). 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). The Court finds that it is in the interests of justice to transfer this action. 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 the Clerk is directed to forward a copy of this Order to the Federal Public Defender. Dated this 2nd day of May, 2016. ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 2