King v. United States of America

Middle District of Florida, flmd-8:2016-cv-01800

ORDER denying {{1}} Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the Defendant and to CLOSE the case. Signed by Judge Susan C Bucklew on 7/12/2016. (JD)

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PageID 31 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ANDRE KING Petitioner v. CASE NO. 8:12-CR-0025-T-24 AAS 8:16-CV-1800-T-24AAS UNITED STATES OF AMERICA Defendant / ORDER Pending before the Court is the Petitioner's Motion to Vacate filed pursuant to 28 U.S.C. § 2255. Because Petitioner's motion is a successive motion to vacate which was filed directly with this Court, and the Eleventh Circuit Court of Appeals has denied Petitioner's application to file a second or successive motion to vacate, this Court lacks jurisdiction to consider the motion. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003); accord United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (citing Farris); see also Harris v. United States, ___ F.App'x ___, 2016 WL 3538824, at *1 (11th Cir. June 29, 2016) (unpublished) (stating that "the district court was required to dismiss [the petitioner's] motion sua sponte because, '[w]ithout authorization, the district court lacks jurisdiction to consider a second or successive [motion]'" (quoting Holt)).1 ACCORDINGLY, it is ORDERED AND ADJUDGED that the Motion to Vacate (Civ. Dkt. 1; Cr. Dkt. 64) is denied. The Clerk is directed to enter judgment for the Defendant in the civil case and to CLOSE the civil case. 1 On January 24, 2014, the Court denied the Petitioner's initial motion to vacate. See case number 8:13-cv-02129-T- 24 EAJ, Dkt. 10. PageID 32 Additionally, the Court declines to issue a certificate of appealability because the Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). DONE AND ORDERED at Tampa, Florida, on July 12, 2016. COPIES FURNISHED TO: Counsel of Record Any pro se parties 2