Clay v. Maye

Filing 5

ORDER re 1 Petition for Writ of Habeas Corpus (Criminal Case No. 09-cr-05-LRR) filed by Donnale C Clay. The movants 28 U.S.C. § 2255 motion is dismissed. Signed by Chief Judge Linda R Reade on 8/12/16. (ksy)(Copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

DONNALE C. CLAY,
Movant,

No. C16-0123-LRR
No. CR09-0005-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on Donnale C. Clay’s motion to vacate, set
aside or correct sentence (civil docket no. 1). Donnale C. Clay (“the movant”) filed such
motion on June 15, 2016. The movant previously sought relief under 28 U.S.C. § 2255,
and, before filing the instant action, the movant did not move the Eighth Circuit Court of
Appeals for authorization allowing the court to file and consider a second 28 U.S.C.
§ 2255 motion. 28 U.S.C. § 2244(b)(3)(A) provides:
Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.
“This rule is absolute.” Boykin v. United States, 2000 U.S. App. LEXIS 27076 at *1-3,
2000 WL 1610732 at *1 (8th Cir. 2000) (per curiam unpublished opinion) (vacating
judgment regarding 28 U.S.C. § 2255 motion and remanding case to district court to
dismiss for lack of jurisdiction). Cf. Felker v. Turpin, 518 U.S. 651, 662, 116 S. Ct.
2333, 135 L. Ed. 2d 827 (1996) (discussing 28 U.S.C. § 2244(b)); Vancleave v. Norris,

150 F.3d 926, 927-28 (8th Cir. 1998) (same). Accordingly, the movant’s instant 28
U.S.C. § 2255 motion (civil docket no. 1) shall be dismissed.1
IT IS THEREFORE ORDERED:
The movant’s 28 U.S.C. § 2255 motion (civil docket no. 1) is DISMISSED.
DATED this 12th day of August, 2016.

1

The court notes that the movant is serving a term of imprisonment pursuant to a
revocation judgment.
2