Covington v. United States of America
Filing
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ORDER: Petitioner Robert Curtis Covington'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. 342 in the underlying criminal case, case number 8:06-cr-162-T-30TBM. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 8/9/2016.(LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT CURTIS COVINGTON,
Petitioner,
v.
Case No: 8:16-cv-1824-T-30TBM
Crim. Case No: 8:06-cr-162-T-30TBM
UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Petitioner Robert Curtis Covington’s
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc.
1). By his motion, Covington 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
Covington’s motion for leave to file a successive § 2255, his motion should be dismissed.
Covington’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 29, 2016, the Eleventh Circuit denied Covington’s request to file a
successive motion under § 2255 based on Johnson. (CV Doc. 8). Because Covington 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 Robert Curtis Covington’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. 342 in the underlying criminal case, case number 8:06-cr-162-T-30TBM.
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3.
The Clerk is directed to terminate any pending motions and close this case.
DONE and ORDERED in Tampa, Florida, this 9th day of August, 2016.
Copies furnished to:
Counsel/Parties of Record
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