Moore v. United States of America
ORDER dismissing 1 Motion to Vacate, Set Aside, or Correct Sentence as second or successive. The Clerk shall send Petitioner the proper form to apply to the Eleventh Circuit Court of Appeals for leave to file a second or successive motion to vacate, and close the file. Signed by Judge Timothy J. Corrigan on 9/15/2016. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA,
This case is before the Court on Petitioner Algie Moore’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1). 1 Petitioner
challenges his sentence as a career offender under the United States Sentencing
Guidelines. 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. On July 13, 2016, the
Court ordered the parties to show cause why this case should not be stayed pending
the Supreme Court’s decision in Beckles v. United States, 136 S. Ct. 2510 (2016),
which will resolve whether Johnson’s holding extends to the guidelines. (Civ. Doc. 4).
The United States responds that the case should not be stayed because Petitioner’s
Citations to the record in the underlying criminal case, United States of
America vs. Algie Moore, Case No. 3:02-cr-233-J-32MCR, will be denoted as “Crim.
Doc. __.” Citations to the record in the civil case, Case No. 3:16-cv-766-J-32MCR, will
be denoted as “Civ. Doc. __.”
Motion to Vacate is an unauthorized second or successive § 2255 motion, and
therefore the Court lacks jurisdiction to consider it. (Civ. Doc. 6). The Court agrees,
and this case is due to be dismissed.
Petitioner previously moved to vacate his sentence under 28 U.S.C. § 2255 (see
Case No. 3:05-cv-499-J-32MCR, Doc. 1), the Court denied the first motion on the
merits (Case No. 3:05-cv-499-J-32MCR, Doc. 27), and the Eleventh Circuit denied
Petitioner a certificate of appealability (Case No. 3:05-cv-499-J-32MCR, Doc. 35). As
such, 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.”). Petitioner
has neither applied for nor obtained authorization to file the current Motion to
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 has not authorized Petitioner to file a second or successive
motion to vacate, the Court lacks jurisdiction over the current § 2255 motion.
Accordingly, it is hereby
1. Petitioner Algie Moore’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. The Clerk shall send Petitioner the proper form to apply to the Eleventh
Circuit Court of Appeals for leave to file a second or successive motion to
3. The Clerk shall close the file.
DONE AND ORDERED at Jacksonville, Florida this 15th day of September,
Counsel of record
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