Kendrick v. United States of America

Filing 4

ORDER denying as moot 1 MOTION for Leave to Proceed in forma pauperis filed by Timothy Martin Kendrick; Dismissing 2 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR 02-2039-LRR-2) filed by Timothy Martin Kendrick . Further, because it appears from the record that the movant mistakenly sent his motions and exhibits to this court rather than the Eighth Circuit Court of Appeals, the clerks office shall be directed to forward a copy of this order and all of the movants documents to the Eighth Circuit Court of Appeals. Signed by Chief Judge Linda R Reade on 2/25/14. (ksy)(Copy w/NEF to Plf; copy of case sent to 8th Circuit Court of Appeals)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

TIMOTHY MARTIN KENDRICK,
Movant,

No. C14-2008-LRR
No. CR02-2039-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on Timothy Martin Kendrick’s motion to
proceed in forma pauperis (civil docket no. 1) and motion to vacate, set aside or correct
sentence (civil docket no. 2). Timothy Martin Kendrick (“the movant”) filed both motions
on January 27, 2014. 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2000 WL 1610732 at *1 (8th Cir. 2000) (per curiam unpublished opinion) (vacating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 motion to
proceed in forma pauperis (civil docket no. 1) shall be denied as moot and the movant’s
instant 28 U.S.C. § 2255 motion (civil docket no. 2) shall be dismissed. Further, because
it appears from the record that the movant mistakenly sent his motions and exhibits to this
court rather than the Eighth Circuit Court of Appeals, the clerk’s office shall be directed
to forward a copy of this order and all of the movant’s documents to the Eighth Circuit
Court of Appeals.
IT IS THEREFORE ORDERED:
(1) The movant’s motion to proceed in forma pauperis (civil docket no. 1) is denied
as moot.
(2) The movant’s 28 U.S.C. § 2255 motion (civil docket no. 2) is DISMISSED.
(3) The clerk’s office is directed to forward a copy of this order and all of the
movant’s documents to the Eighth Circuit Court of Appeals.
DATED this 25th day of February, 2014.

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