McAllister v. USA, No. 4:2016cv00968 - Document 5 (E.D. Mo. 2016)

Court Description: OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that movant's motion to stay is DENIED. [ECF No. 3 ] IT IS FURTHER ORDERED that movant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 7/12/2016. (GGB)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION OTIS MCALLISTER, Movant, v. UNITED STATES OF AMERICA, Respondent, ) ) ) ) ) ) ) ) ) No. 4:16CV968 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court on movant’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion is denied without prejudice. Movant argues that his sentence is unconstitutional after Johnson v. United States, 135 S.Ct. 2551 (2015). The motion is successive. McAllister v. United States, No. 4:08-CV-1414 HEA. He has filed an application for permission to file a successive motion to vacate in the Court of Appeals for the Eighth Circuit, which remains pending. McAllister v. United States, No. 16-2426 (8th Cir.). Movant seeks to hold the instant case in abeyance pending the decision of the Court of Appeals. The requirement that prisoners obtain authorization from the circuit court before filing a second or successive petition in the district court is jurisdictional. Burton v. Stewart, 127 S. Ct. 793, 796 (2007). “Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” Kessler v. Nat’l Enterprises, Inc., 347 F.3d 1076, 1081 (8th Cir. 2003) (quotation marks omitted; emphasis added). Because movant has not received permission from the Court of Appeals to file this action, this Court lacks jurisdiction to entertain the motion or to hold this matter in abeyance. Therefore, the motion is denied, and this action is dismissed without prejudice. See Fed. R. Civ. P. 12(h)(3) (dismissal is required, not discretionary). Finally, movant has not met the burden for issuing a certificate of appealability under 28 U.S.C. § 2253(c). Accordingly, IT IS HEREBY ORDERED that movant’s motion to stay is DENIED. [ECF No. 3] IT IS FURTHER ORDERED that movant’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Dated this 12th day of July, 2016 ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 2