Parker v. United States of America

Middle District of Florida, flmd-8:2016-cv-02034

ORDER vacating {{3}} --order; dismissing as un-authorized {{1}} --motion to vacate/set aside/correct sentence (2255); denying as moot {{7}} --motion for an extension of time; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 8/17/2016. (BK)

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PageID 30 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO. 8:95-cr-227-T-23TGW 8:16-cv-2034-T-23TGW LESLIE A. PARKER / ORDER Parker moves to vacate his sentence under 28 U.S.C. § 2255 (Doc. 1) and asserts entitlement to relief under Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), and Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Parker's earlier motion to vacate under 28 U.S.C. § 2255 was denied. (Docs. 68 and 79 in 95-cr-227) Parker is precluded from a second or successive motion without authorization from the Eleventh Circuit Court of Appeals. "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999). The circuit court (1) denied Parker's initial request for leave to file a second or successive motion under Johnson and Welch, (2) granted his later request and authorized his filing a second or successive motion, and (3) vacated the earlier authorization and denied Parker's request for leave to file a second or successive PageID 31 motion. (Docs. 85, 89, and 93 in 95-cr-227) A district court lacks jurisdiction to review a second or successive motion without the requisite authorization from the circuit court. Burton v. Stewart, 549 U.S.147, 157 (2007) ("Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a 'second or successive' petition challenging his custody, and so the District Court was without jurisdiction to entertain it."). Because the circuit court withdrew the earlier authorization and denied authorizing a second or successive motion, Parker cannot proceed with the present action. Accordingly, the earlier order (Doc. 3) directing Parker to file a supporting memorandum and directing the United States to respond is VACATED. Parker's motion (Doc. 7) for an extension of time to file his supporting memorandum is DENIED as moot. The motion to vacate (Doc. 1) is DISMISSED as un-authorized. The clerk must CLOSE this case. ORDERED in Tampa, Florida, on August 17, 2016. -2-