DeCaro v. USA

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that counsel's verified motion for admission pro hac vice [ECF No. 2] is DENIED. Signed by District Judge Audrey G. Fleissig on 2/19/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICHARD DeCARO,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:13CV00014 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Movant’s second or successive motion to vacate,
set aside or correct sentence under 28 U.S.C. § 2255. Before such a motion may be filed in
this Court, it must be authorized by the Eighth Circuit Court of Appeals. See 28 U.S.C.
§ 2244(b)(3). Because the instant motion does not have such authorization, the Court will
dismiss it without further proceedings.
Movant is serving a life sentence for murder for hire. United States v. DeCaro,
1:96CR5 (E.D. Mo.). Movant previously filed a motion to vacate under § 2255, which was
denied on the merits. See DeCaro v. United States, 1:98CV112 (E.D. Mo.). The Eighth
Circuit Court of Appeals denied Movant’s motion for a certificate of appealability on June
9, 1999. Id.
Movant filed his instant § 2255 motion on January 29, 2013. He seeks relief under
Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012),
cases in which the Supreme Court held that plea counsel has a duty to inform his or her client

of formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to defendant. Movant states his counsel failed to live up to the standards
announced in Frye and Lafler.
Only the Court of Appeals may decide whether a movant may file a successive motion
under § 2255. 28 U.S.C. § 2244(b)(3). As a result, this Court lacks jurisdiction over the
instant motion, and the Court will dismiss this action without prejudice.
Additionally, counsel has filed a motion for leave to proceed pro hac vice. The
motion is incomplete because counsel did not file a certificate of good standing. On
February 13, 2013, the Clerk’s Office called counsel and emailed him regarding the fact that
he had not filed his certificate, but counsel did not return any communication to the Court.
Furthermore counsel still has not filed his certificate several days later. As a result, the
motion to proceed pro hac vice is denied.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice.
IT IS FURTHER ORDERED that counsel’s verified motion for admission pro hac
vice [ECF No. 2] is DENIED.
Dated this 19th day of February, 2013.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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