Myers v. United States Of America

Filing 5

ORDER ADOPTING 2 Report and Recommendations dismissing the 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). The Clerk of Court is directed to close the case. Signed by Judge William T. Moore, Jr on 12/20/13. (wwp)

Q

:-

IN THE UNITED STATES DISTRICT COURL,..
OR ,.
THE SOUTHERN DISTRICT OF GEORGA SAVANNAH DIVISION

ANDRE C. MYERS,

)

Petitioner,
CASE NOS. CV413-221
CR4 95-123

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER

Before the Court is the Magistrate Judge's Report and
Recommendation (Doc. 2), to which objections have been
filed (Doc. 4). After a careful de novo review of the
record, the Court concludes that Petitioner's objections
are without merit. Accordingly, the report and
recommendation

is ADOPTED

as the Court's

opinion in this

case, and Petitioner's 28 U.S.C. § 2255 Petition is
DISMISSED.

The Clerk of Court is

DIRECTED

to close this

case.
In his

objections,

Petitioner relies on the Supreme

Court's recent decision in McQuiggin v. Perkins, U.S.
133 S. Ct. 1924 (2013), for the notion that he need
not obtain permission from the Eleventh Circuit Court of
Appeals prior to filing a successive petition. (Doc. 4 at
1.) However, the Court in McQuiggin held that a colorable

claim of innocence could excuse procedural limitations on
filing habeas petitions. 133 S. Ct. at 1928. In this
case, the issue is one of jurisdiction, not a procedural
barrier.
For this Court to have jurisdiction to entertain a
successive habeas petition, the petitioner must first
obtain permission from the Eleventh Circuit Court of
Appeals by filing an "Application for Leave to File a
Second or Successive Habeas Corpus Petition," using the
form provided by the Eleventh Circuit Clerk of Court.
Absent certification from the Eleventh Circuit Court of
Appeals pursuant to Eleventh Circuit Rule 22-3 (a), this
Court is without jurisdiction to entertain the merits of
any successive petition. Because this Court lacks any
jurisdiction over the petition, McQuiggin is inapplicable
and the petition must be DISMISSED.
SO ORDERED this

6'--'*day of December 2013.

WILLIAM T. MOORE, JR.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA