Aguilera v. USA

Filing 3

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the instant motion to vacate is DENIED, without prejudice, because movant did not obtain permission from the court of appeals to bring the motion in this Court. See 28 U.S.C. § 2255(h). IT IS FURTH ER ORDERED that the Clerk shall TRANSFER the instant motion to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631. IT IS FURTHER ORDERED that the Clerk is directed to forward a copy of this Order to the Federal Public Defender. Signed by District Judge Stephen N. Limbaugh, Jr on 6/7/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TERESA A. AGUILERA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:16CV120 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on movant's motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255. In the instant motion, movant claims that the new Supreme Court
case of Johnson v. United States, 135 S.Ct. 2551 (2015), decided in June of 2015, should be
applied to his case in order to reduce his sentence. The motion is a "second or successive motion"
within the meaning of 28 U.S.C. §§ 2244 & 2255 but has not been certified by the United States
Court of Appeals for the Eighth Circuit as required by the AEDP A.
On August 26, 2011, movant pied guilty to armed bank robbery, possession of a firearm in
furtherance of a crime of violence and being convicted in possession of a firearm. See United

States v. Aguilera, No. 1:11CR0041 SNLJ (E.D. Mo. 2011). On December 12, 2011, the Court
sentenced movant to a total term of 100 months' imprisonment and five years' supervised release.
Movant did not appeal. Id.
On November 6, 2013, movant filed a motion to vacate, set aside or correct sentence
brought pursuant to 28 U.S.C. § 2255. See Aguilera v. United States, No. 1:13CV162 SNLJ
(E.D.Mo. 2013). The Court dismissed movant's motion to vacate as time-barred on December

26, 2013 and denied movant a certificate of appealability. Id.

Movant did not appeal the

dismissal.
Movant filed the instant motion to vacate on May 26, 2016, in her criminal case by
dropping it in her prison mailing system. The Court converted the criminal motion to a proper
motion to vacate, pursuant to 28 U.S.C. § 2255 on June 6, 2016.
Under 28 U.S.C. § 2255:
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 factfinder 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.
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u.s.c. § 2255(h).
Movant submitted her successive § 2255 motion without the required certification. When

a second or successive habeas petition is filed in a district court without the authorization of the
court of appeals, the court should dismiss it, or, in its discretion, transfer the motion to the
appellate court so long as it is in the interests of justice. Boydv. US., 304 F.3d 813, 814 (8th Cir.
2002).
As this matter is relatively time sensitive and it appears that movant has a tenable claim for
relief under Johnson, the Court finds that it is in the interest of justice to transfer movant' s petition
to the Eighth Circuit Court of Appeals as a request to file a second or successive § 2255 motion
based on Johnson, and its new law ruling.
Accordingly,

IT IS HEREBY ORDERED that the instant motion to vacate is DENIED, without
prejudice, because movant did not obtain permission from the court of appeals to bring the motion
in this Court. See 28 U.S.C. § 2255(h).

IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the
United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631.

IT IS FURTHER ORDERED that the Clerk is directed to forward a copy of this Order to
the Federal Public Defender.
Dated this

7-f(

day of June, 2016.

STEPHEN~f&of

JR.·

UNITED STATES DISTRICT JUDGE

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