Suarez v. United States of America

Filing 2

ORDER denying 1 Defendant Suarez's Motion to vacate, set aside, or correct sentence, as successive. The Clerk is directed to enter judgment in the civil case and to close that case. The Clerk is also directed to send Defendant Suarez the Eleventh Circuit's application form for a second or successive motion to vacate. Signed by Judge Susan C Bucklew on 1/4/2006. (SM)

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Suarez v. United States of America Doc. 2 Case 8:05-cv-02385-SCB-MAP Document 2 Filed 01/04/2006 Page 1 of 2 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION HEIMAR SUAREZ, -vsUNITED STATES OF AMERICA. _____________________________ ORDER This cause is before the Court on Defendant's successive 28 U.S.C. 2255 motion to vacate, set aside, or correct an allegedly illegal sentence. (Doc. cv-1; cr-118). On July 18, 2005, the Court addressed the merits of Defendant's original motion to vacate filed in Case No. 8:05-cv-1179-T-24MAP. (See Doc. cv-3; cr-116). In that case, this Court denied Defendant's motion for reconsideration. Defendant's appeal was dismissed by the United States Court of Appeals for the Eleventh Circuit for failure to prosecute. (Doc. cv-11, 12). On December 15, 2005, Defendant signed the present document entitled, "Defendant Claim Actual Prejudice After Plain Error," which the Court construes as a successive 28 U.S.C. 2255 motion to vacate. (Doc. cv-1; cr-118). Pursuant to 28 U.S.C. 2255 and 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, federal prisoners who want to file a second or successive motion to vacate, set aside, or correct a sentence must move the court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. 2244(b)(3)(A). A three-judge panel of the court of appeals, 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it determines that the motion contains claims Case No. 8:04-cr-141-T-24MAP 8:05-cv-2385-T-24MAP Dockets.Justia.com Case 8:05-cv-02385-SCB-MAP Document 2 Filed 01/04/2006 Page 2 of 2 which rely on either: (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. 2255. See In re Blackshire, 98 F.3d 1293 (11th Cir. 1996). Defendant Suarez has not fulfilled the requirements of the statutes as set out above. Accordingly, Petitioner's successive 28 U.S.C. 2255 motion to vacate (Doc. cv-1; cr-118) is denied. The Clerk is directed to enter judgment against Defendant Suarez in Civil Case No. 8:05-cv-2385-T-24MAP, and to close that case. The Clerk is directed to send Defendant Suarez the Eleventh Circuit's application form for a second or successive motion to vacate. ORDERED at Tampa, Florida, on January 4, 2006. AUSA: Christopher P. Tuite; Peter Sholl Pro se: Heimar Suarez -2-

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