Maxwell v. USA

Filing 3

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the motion of Preston Maxwell to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately.. Signed by District Judge E. Richard Webber on 6/24/16.(MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
PRESTON E. MAXWELL,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:16-CV-139 ERW

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Preston Maxwell to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. The motion is denied without prejudice.
Movant was convicted of felon in possession of a firearm and was sentenced to 235
months’ imprisonment. United States v. Maxwell, No. 1:02-CR-92 ERW. He challenged his
sentence under Section 2255 in April 2006. Maxwell v. United States, No. 1:106-CV-29 ERW.
The Court denied the motion on the merits.
In this case, movant argues that his sentence is unconstitutional after Johnson v. United
States, 135 S.Ct. 2551 (2015). He has filed an application for permission to file a successive
motion to vacate in the Court of Appeals for the Eighth Circuit, which remains pending.
Maxwell v. United States, No. 16-2188 (8th Cir.). Movant seeks to hold the instant case in
abeyance pending the decision of the Court of Appeals.
The requirement that prisoners obtain authorization from the circuit court before filing a
second or successive petition in the district court is jurisdictional. Burton v. Stewart, 549 U.S.
147, 153 (2007).

“Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be
established as a threshold matter springs from the nature and limits of the judicial power of the
United States and is inflexible and without exception.” Kessler v. Nat’l Enterprises, Inc., 347
F.3d 1076, 1081 (8th Cir. 2003) (quotation marks omitted).
Because movant has not received permission from the Court of Appeals to file this
action, this Court lacks jurisdiction to entertain the motion or to hold this matter in abeyance.
Therefore, the motion is denied, and this action is dismissed without prejudice.
Finally, movant has not met the burden for issuing a certificate of appealability under 28
U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the motion of Preston Maxwell to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without
prejudice.
An Order of Dismissal will be filed separately.
So Ordered this 24th day of June, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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