Tillery v. United States of America

Filing 5

ORDER dismissing 1 Motion to Vacate, Set Aside, or Correct Sentence as second or successive; denying as moot 3 Motion to Stay. The Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 9/15/2016. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WARREN ANTHONY TILLERY,
Petitioner,
vs.

Case No.:

UNITED STATES OF AMERICA,

3:16-cv-764-J-32JRK
3:10-cr-188-J-32JRK

Respondent.
______________________________________/
ORDER
This case is before the Court on Petitioner Warren Anthony Tillery’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1).1
Petitioner argues that he is entitled to relief from his sentence under Johnson v.
United States, 135 S. Ct. 2551 (2015), which held that the “residual clause” of the
Armed Career Criminal Act is unconstitutionally vague, and Welch v. United States,
136 S. Ct. 1257 (2016), which held that Johnson applies retroactively on collateral
review.
Because Petitioner previously moved to vacate his sentence under 28 U.S.C. §
2255 (see Case No. 3:13-cv-51-J-32JRK, Doc. 1), and because the Court denied the
first motion to vacate on the merits (Case No. 3:13-cv-51-J-32JRK, Doc. 31),

Citations to the record in the underlying criminal case, United States of
America vs. Warren Anthony Tillery, Case No. 3:10-cr-188-J-32JRK, will be denoted
as “Crim. Doc. __.” Citations to the record in the civil case, Case No. 3:16-cv-764-J32JRK, will be denoted as “Civ. Doc. __.”
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1

Petitioner was required to apply to the Eleventh Circuit Court of Appeals for
permission to file a second or successive motion to vacate.

See 28 U.S.C. §

2244(b)(3)(A) (“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.”). On July 19,
2016, the Eleventh Circuit Court of Appeals denied Petitioner’s application. (Crim.
Doc. 84).
Under 28 U.S.C. § 2255, “[a] second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals….” 28 U.S.C.
§ 2255(h). “Without authorization, the district court lacks jurisdiction to consider a
second or successive petition.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005) (citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)). Because
the Eleventh Circuit denied Petitioner’s application to file a second or successive
motion to vacate, the Court lacks jurisdiction over the current § 2255 motion.
Accordingly, it is hereby
ORDERED:
1. Petitioner Warren Anthony Tillery’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction.
2. Petitioner’s Motion to Hold § 2255 Proceedings in Abeyance (Civ. Doc. 3) is
DENIED AS MOOT.

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3. The Clerk shall close the file.
DONE AND ORDERED at Jacksonville, Florida this 15th day of September,
2016.

Lc 19
Copies:
Counsel of record
Petitioner Warren Anthony Tillery

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