Boyd v. United States of America
Filing
8
ORDER: Petitioner Antonio Cortez Boyd's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DISMISSED. The Clerk is directed to terminate from pending status the motion to vacate found at Doc. 97 in the underlying criminal case, case number 8:09-cr-277-T-30TGW. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 7/29/2016. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTONIO CORTEZ BOYD,
Petitioner,
v.
Case No: 8:16-cv-1813-T-30TGW
Crim. Case No: 8:09-cr-277-T-30TGW
UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Petitioner Antonio Cortez Boyd’s Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1). By his
motion, Boyd asserts that he is entitled to relief pursuant to Johnson v. United States, 135 S.
Ct. 2551 (2015), declared retroactive by Welch v. United States, No. 15-6418, 2016 WL
1551144 (Apr. 18, 2016). Because the Eleventh Circuit denied Boyd’s motion for leave to file
a successive § 2255, his motion should be dismissed.
Boyd’s present § 2255 motion is a second or successive motion. Pursuant to 28 U.S.C.
§§ 2255(h) 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 in the appropriate 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 may authorize the filing of a second
or successive motion only if it determines that the motion contains claims 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(h).
On July 20, 2016, the Eleventh Circuit denied Boyd’s request to file a successive
motion under § 2255 based on Johnson. (CV Doc. 5). Because Boyd has not received
authorization to file a second or successive habeas petition from the Eleventh Circuit, this
Court lacks jurisdiction to consider his motion and it should be dismissed. See United States
v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (“Without authorization [from the appropriate
court of appeals, a] district court lacks jurisdiction to consider a second or successive
petition.”).
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.
Petitioner Antonio Cortez Boyd’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED.
2.
The Clerk is directed to terminate from pending status the motion to vacate
found at Doc. 97 in the underlying criminal case, case number 8:09-cr-277-T-30TGW.
3.
The Clerk is directed to terminate any pending motions and close this case.
DONE and ORDERED in Tampa, Florida, this 29th day of July, 2016.
Copies furnished to:
Counsel/Parties of Record
2
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