Barclay v. United States of America

Filing 14

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 1/23/15. (SAC )

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FILED 2015 Jan-23 PM 03:55 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION TIONNE SHAMAR BARCLAY, Movant/Defendant, v. UNITED STATES OF AMERICA, Respondent ) ) ) ) ) ) ) ) ) ) 5:11-cv-8041-KOB-JEO (5:05-cr-0435-KOB-JEO) MEMORANDUM OPINION Tionne Shamar Barclay is serving a 180-month sentence imposed by this court following his plea of guilty to one count of conspiracy to distribute and to possess with the intent to distribute five or more kilograms of a mixture and substance containing a detectable amount of cocaine hydrochloride. Now acting pro se, Thomas has filed a motion to vacate, set aside or correct his federal sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). On June 16, 2014, the magistrate judge entered a report and recommendation, recommending that the court dismiss this action without prejudice for lack of jurisdiction. (Doc. 11). Specifically, the magistrate judge concluded that Barclay’s instant motion is a second or successive § 2255 application for which he has not obtained an authorizing order required by 28 U.S.C. § 2255(h). (Id.) Barclay filed objections on July 28, 2014. (Doc. 13). Although Barclay’s objection spans twenty pages, he fails to address the magistrate judge’s determination that this action is barred as successive under § 2255(h). As his objections provide no basis for rejecting the magistrate judge’s recommendation, the court OVERRULES them. Having carefully reviewed and considered de novo all the materials in the court file, including the findings and recommendation and Barclay’s objections, the court ADOPTS the magistrate judge’s REPORT and ACCEPTS his recommendation. Accordingly, the court finds that the petition for writ of habeas corpus is due to be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. The court will enter a separate Order in conformity with this Memorandum Opinion. DONE and ORDERED this 23rd day of January, 2015. ____________________________________ KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE 2

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