BARRIOS-LOPEZ v. USA

Filing 4

Entry Dismissing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability: The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/30/2015. Copy sent via US Mail. (DW) Modified on 6/30/2015 (DW).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ISAIAS R. BARRIOS-LOPEZ, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) ) No. 1:14-cv-02004-WTL-TAB No. 1:06-cr-107-WTL-TAB-01 Entry Dismissing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability I. The ' 2255 Motion The motion of Isaias R. Barrios-Lopez for relief pursuant to 28 U.S.C. § 2255 challenging the validity of his conviction in No. IP 06-cr-107-H/F-1 is dismissed for lack of jurisdiction because it is an unauthorized second or successive such motion. The first such motion was docketed as No. 1:10-cv-813-WTL-TAB and was dismissed with prejudice on June 20, 2013. Although not every later-in-time petition is “a second or successive habeas corpus application” within the meaning of 28 U.S.C. § 2244(b), see Magwood v. Patterson, 561 U.S. 320, 332 (2010), the motion filed in this case was such an application. The statute, § 2244(b)(3), “creates a 'gatekeeping' mechanism for the consideration of second or successive [habeas] applications in the district court,” Felker v. Turpin, 518 U.S. 651, 657 (1996), and “'is an allocation of subject-matter jurisdiction to the court of appeals.'” In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)), opinion supplemented on denial of rehearing en banc, 179 F.3d 1024 (7th Cir. 1999). “A district court must dismiss a second or successive petition . . . unless the court of appeals has given approval for the filing.” Id. The required authorization has not been shown. This court is therefore without jurisdiction to proceed. Judgment consistent with this Entry shall now issue. The clerk shall docket this Entry and the accompanying Judgment in the underlying criminal action, No. in No. 1:06-cr-107-WTL-TAB-1. II. Certificate of Appealability Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing ' 2254 proceedings, and 28 U.S.C. ' 2253(c), the court finds that Barrios-Lopez has failed to show that reasonable jurists would find it Adebatable whether [this court] was correct in its procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of appealability. IT IS SO ORDERED. Date: 6/30/15 Distribution: _______________________________ Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana Isaias R. Barrios-Lopez No. 08337-028 MCKEAN FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 8000 BRADFORD, PA 16701

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