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    UNITED STATES OF AMERICA v. WELLS - Document No. 3

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    ORDER Dismissing Motion for Relief pursuant to 28 U.S.C. Section 2255 and Directing Entry of Judgment. (S.O.) cm . Signed by Judge Sarah Evans Barker on 1/23/06. (MAC, ) 1:2006cv00067 Indiana Southern District Court

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    UNITED STATES OF AMERICA v. WELLS - Document No. 3

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    ORDER Dismissing Motion for Relief pursuant to 28 U.S.C. Section 2255 and Directing Entry of Judgment. (S.O.) cm . Signed by Judge Sarah Evans Barker on 1/23/06. (MAC, ) 1:2006cv00067 Indiana Southern District Court

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    ORDER Dismissing Motion for Relief pursuant to 28 U.S.C. Section 2255 and Directing Entry of Judgment. (S.O.) cm . Signed by Judge Sarah Evans Barker on 1/23/06. (MAC, ) 1:2006cv00067 Indiana Southern District Court

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    59 views2 pages

    UNITED STATES OF AMERICA v. WELLS - Document No. 3

    Uploaded by

    Justia.com
    ORDER Dismissing Motion for Relief pursuant to 28 U.S.C. Section 2255 and Directing Entry of Judgment. (S.O.) cm . Signed by Judge Sarah Evans Barker on 1/23/06. (MAC, ) 1:2006cv00067 Indiana Southern District Court

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    of 2

    UNITED STATES OF AMERICA v. WELLS Doc.

    3
    Case 1:06-cv-00067-SEB-VSS Document 3 Filed 01/23/2006 Page 1 of 2

    UNITED STATES DISTRICT COURT


    SOUTHERN DISTRICT OF INDIANA

    UNITED STATES OF AMERICA, )


    )
    vs. ) No. IP 99-140-CR-01-B/F
    ) 1:06-cv-67-SEB-VSS
    MACHEO WELLS, )
    )
    Defendant. )

    Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255

    Defendant Wells’ motion and request for relief from judgment filed on December 20,
    2005, has been treated a motion for relief pursuant to 28 U.S.C. § 2255 and assigned the
    above civil docket number.

    When there has already been a decision on the merits in a federal habeas action,
    to obtain another round of federal collateral review a petitioner requires permission from
    the Court of Appeals under 28 U.S.C. § 2244(b). See Potts v. United States, 210 F.3d 770,
    770 (7th Cir. 2000). This statute, § 2244(b)(3), “creates a 'gatekeeping' mechanism for the
    consideration of second or successive [habeas] applications in the district court." Felker v.
    Turpin, 518 U.S. 651, 657 (1996); see Benefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005);
    United States v. Lloyd, 398 F.3d 978 (7th Cir. 2005). Thus,

    [a]nyone who files a "second or successive" application must start in the


    court of appeals, and any effort to begin in the district court must be
    dismissed for want of jurisdiction . . . .

    Benton v. Washington, 106 F.3d 162, 165 (7th Cir.1996). Section 2244 has been described
    as "self-executing." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). This means
    that a district court lacks all jurisdiction over such a matter until permission to file is granted
    by the Court of Appeals. Id.

    Dockets.Justia.com
    Case 1:06-cv-00067-SEB-VSS Document 3 Filed 01/23/2006 Page 2 of 2

    Mr. Wells already filed an action for relief pursuant to 28 U.S.C. § 2255, which
    reached an adjudication on the merits in No. IP 02-140-C-B/F, which was denied on the
    merits in a final judgment entered on the clerk’s docket on February 13, 2003. The present
    action is another attempt to collaterally challenge the sentence. However, it is presented
    without authorization from the Court of Appeals to do so. The fact that the defendant relies
    on the ruling in United States v. Booker, 125 S. Ct. 738 (2005), does not exempt him from
    the application of § 2244(b). In re Olopade, 403 F.3d 159, 161 n.2 (3rd Cir. 2005)(noting
    that petitioner's motion, regardless of being premised on Booker, constituted a second or
    successive motion that would first have to be authorized by the Court of Appeals).
    Accordingly, the action must be dismissed for lack of jurisdiction and the action summarily
    dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings in the
    United States District Court.

    Judgment consistent with this Entry shall now issue.

    IT IS SO ORDERED.

    Date: 01/23/2006 _______________________________


    SARAH EVANS BARKER, JUDGE
    United States District Court
    Southern District of Indiana

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