Cook v. United States of America

Filing 6

MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/23/2015. (AVC)

FILED
2015 Jan-23 AM 08:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT JAMES COOK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No.:

2:14-cv-8031-RDP
2:03-cr-545-RDP-TMP

MEMORANDUM OPINION
The court has before it the June 11, 2014 Motion to Vacate, Set Aside, or Correct an Error
and Sentence Pursuant to 28 U.S.C. § 2255(a) filed by Robert James Cook on June 11, 2014.
Pursuant to the court’s July 9, 2014 order (Doc. #2), the United States Government filed a Response
(Doc. #3), arguing that the Motion should be dismissed in its entirety as successive. Petitioner filed
a Response (Doc. #5) to the Government’s arguments on September 11, 2014. The Motion to Vacate
(Doc. #1) is now under submission and due to be denied.
The Motion (Doc. #1) is due to be denied because it is Cook’s second motion filed under 28
U.S.C. § 2255. His first motion was filed on May 7, 2007, and that motion was dismissed with
prejudice on September 28, 2009. (See generally 2:07-cv-8015-RDP-TMP). Thereafter, Petitioner
filed the instant Motion on June 11, 2014.
The law is clear that a successive motion pursuant to § 2255 may not be reviewed by this
court unless the defendant first obtains permission – i.e., a certificate of appealability – from the
Eleventh Circuit to file the same. 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A); Jackson v.
Crosby, 437 F.3d 1290, 1294-95 (11th Cir. 2006). Petitioner does not have the required certificate
of appealability. As such, the court’s hands are tied, and it cannot consider the present motion.

Because Petitioner has not satisfied this requirement, the court is without jurisdiction to entertain his
successive § 2255 motion, and the Motion to Vacate (Doc. #1) is due to be denied.
A separate order will be entered dismissing this action without prejudice. The Clerk is
DIRECTED to mail a copy of this order to Petitioner and the United States Attorney for the
Northern District of Alabama.
DONE and ORDERED this

23rd

day of January, 2015.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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