McCutcheon v. United States of America
Filing
9
OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) without prejudice. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:04-cr-66-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 9/9/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA
vs.
Case No. 2:14-cv-345-FtM-29DNF
Case No. 2:04-cr-66-FTM-29DNF
EUGENE JERMAINE MCCUTCHEON
OPINION AND ORDER
This matter comes before the Court on Petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (Cv. Doc. #1) and a Memorandum in
Support (Cv. Doc. #2), both filed on June 23, 2014.
The United
States’ Response in Opposition (Cv. Doc. #8) was filed on August
12, 2014.
Petitioner
Eugene
Jermaine
McCutcheon
previously
filed
a
Petition under 28 U.S.C. § 2255 in Case No. 2:05-cv-526-FtM-29DNF.
The district court denied Ground I and dismissed Ground II (2:05cv-526, Doc. #25), and the Eleventh Circuit denied a certificate
of appealability (2:05-cv-526, Doc. #34) on October 8, 2008.
A
prisoner may not file a second or successive motion under § 2255
without the permission of the appropriate court of appeals.
U.S.C. § 2255(h).
28
Absent such permission, a district judge lacks
jurisdiction to address the motion and must dismiss it.
United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Petitioner
has not obtained a certification from the Eleventh Circuit Court
of Appeals which allows the filing of a second or successive
petition, and therefore the district court lacks subject matter
jurisdiction.
Accordingly, it is hereby
ORDERED:
1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(Cv. Doc. #1) is DISMISSED without prejudice.
2. The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed
to place a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
showing, petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
reasonable
jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
- 2 -
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citations and internal quotation marks omitted).
Petitioner
has
not
made
the
requisite
showing
in
these
circumstances.
Finally, because petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis
as to the successive petition.
DONE and ORDERED at Fort Myers, Florida, this
September, 2014.
Copies:
Counsel of Record
Eugene Jermaine McCutcheon
- 3 -
9th
day of
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