Brooks v. United States of America

Filing 2

INITIAL REVIEW ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR09-4058-DEO) filed by Gary Lee Brooks. Because Mr. Brooks has not sought leave to file a successive habeas petition from the 8th Circuit, his Petition must be dismissed. Signed by Senior Judge Donald E OBrien on 3/23/15. (copy w/nef mailed to petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GARY LEE BROOKS,
Petitioner,

No.

vs.

15-CV-4021-DEO

INITIAL REVIEW ORDER

UNITED STATES OF AMERICA,
Respondent.
____________________
Before the Court is a pro se pleading filed by Gary
Brooks [hereinafter Mr. Brooks]. Mr. Brooks’ pro se motion is
an application for relief pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct a sentence by a person in
federal custody.

Mr. Brooks’ filing states that he has a

claim for habeas relief based upon new evidence.
1.

Mr.

Brooks

is

currently

incarcerated

Docket No.

pursuant

to

a

conviction related to the distribution of Methamphetamine.
See 09-CR-4058-DEO, Docket No. 47.
I.

ANALYSIS
The Court notes that Mr. Brooks previously filed a pro se

28 U.S.C. § 2255 Petition related to his present incarceration
for methamphetamine distribution.
No. 1, filed on October 31, 2011.
appointed Mr. Brooks counsel.

See 11-CV-4096-DEO, Docket
On that date, the Court

11-CV-4096-DEO, Docket No. 2.

On October 29, 2013, the Court entered an Order denying Mr.
Brooks’ Petition for 28 U.S.C. § 2255 habeas relief.
4096-DEO, Docket No. 30.

11-CV-

The 8th Circuit Court of Appeals

subsequently affirmed this Court’s ruling.

11-CV-4096-DEO,

Docket No. 43.
Under the Code, a party may not bring a successive 28
U.S.C. § 2255 habeas action without obtaining leave from the
8th Circuit Court of Appeals.

28 U.S.C. § 2255 states that:

(h) A second or successive motion must be
certified as provided in section 2244 by a
panel of the appropriate court of appeals
to contain-- (1) newly discovered evidence
that, if proven and viewed in light of the
evidence as a whole, would be sufficient to
establish by clear and convincing evidence
that no reasonable fact finder 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.
See also Rule 9 of the Rules Governing Section 2255 Cases,
which states that:
Before presenting a second or successive
motion, the moving party must obtain an
order from the appropriate court of appeals
authorizing the district court to consider
the motion...

2

There is no evidence that Mr. Brooks has obtained leave
from the 8th Circuit to file a successive habeas action.
Accordingly, this Court cannot allow Mr. Brooks’ present
action to proceed.
II. RULE 22B
To get permission to file a second successive habeas
petition, Mr. Brooks must comply with Rule 22B of the 8th
Circuit’s Local Rules.

That Rule states:

(a) In any application for second or
successive habeas corpus relief or for
second or successive motion under 28 U.S.C.
§ 2255 which is filed in this court, the
petitioner or movant must provide the
following information:
(1) the grounds for relief;
(2) if available, the filing
dates, captions, docket numbers,
and courts where all prior habeas
proceedings
or
section
2255
motions and appeals were filed;
and
(3) the outcome of all former
habeas proceedings or section
2255
motions
and
appeals,
including
whether
any
prior
petition was dismissed without
prejudice or for failure to
exhaust state remedies.

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(b) The clerk will electronically serve a
copy of the application for second or
successive habeas petition or section 2255
motion on the appropriate state attorney
general or United States attorney.
(c) The state attorney general or United
States attorney must file a response within
14 days of receipt of the application for
second or successive habeas petition or
section 2255 motion. The response must
include:
(1) a brief response to the
grounds for relief stated by
petitioner or movant;
(2) information petitioner or
movant has not supplied under
Rule 22B(a)(2) and (3) of these
local rules; and
(3)
copies
of
orders
and
memorandum opinions in all former
habeas proceedings and section
2255 motions filed by petitioner
or movant if the orders and
opinion
are
not
available
electronically through PACER or
Westlaw.
(d) Applications and responses are limited
1
to 20 pages.

1

See 8th Circuit Court of Appeals Local Rules available
at http://media.ca8.uscourts.gov/newrules/coa/localrules.pdf
4

Mr.

Brooks’

current

claim

must

be

denied

until

he

complies with the above stated rule and obtains permission
from the 8th Circuit to proceed.
III.

CONCLUSION
Because

Mr.

Brooks

has

not

sought

leave

to

file

a

successive habeas petition from the 8th Circuit, his Petition
must be dismissed.
IT IS SO ORDERED this 23rd day of March, 2015.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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