Thomas v. United States of America

Filing 2

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that movant's motion to vacate, set aside or correct sentence is DENIED. Signed by Honorable Carol E. Jackson on 05/18/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY THOMAS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:11CV810 CEJ

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. The motion is both untimely and 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
AEDPA. As a result, the motion will be denied.
On May 18, 2005, a jury found movant guilty of four counts of mail fraud (in
violation of 18 U.S.C. §§ 1341 and 2), one count of wire fraud (in violation of 18
U.S.C.§§ 1343 and 2), two counts of money laundering (in violation of 18 U.S.C. §§
1957 and 2), and one count of bank fraud (in violation of 18 U.S.C. §§ 1344 and 2).
He was sentenced on August 12, 2005, to a 172-month term of imprisonment, to be
followed by a five-year supervised release term. The judgment also required movant
to pay restitution in the sum of $1,147,683.71. The judgment was affirmed on
appeal. United States v. Thomas, 451 F.3d 543 (8th Cir. 2006). The United States

Supreme Court denied movant’s petition for a writ of certiorari. Thomas v. United
States, 549 U.S. 1144, 127 S.Ct. 1010, 166 L.Ed.2d 761 (2007).
Movant filed his first motion to vacate pursuant to 28 U.S.C. § 2255 on April 28,
2008, asserting nine claims of ineffective assistance of counsel. This Court denied the
motion based on movant’s failure to file his motion to vacate within the statute of
limitations, and the United States Court of Appeals for the Eighth Circuit denied movant’s
application for a certificate of appealability on March 31, 2011.
In the instant motion, movant again asserts claims of ineffective assistance of
counsel. As the Court held with regard to movant’s first motion to vacate, movant’s
arguments are untimely and are subject to dismissal. Moreover, movant’s motion is also
considered successive, and absent certification from the United States Court of Appeals,
this Court lacks authority under § 2255 to grant movant’s requested relief. See 28 U.S.C.
§§ 2244 and 2255.
Accordingly,
IT IS HEREBY ORDERED that movant’s motion to vacate, set aside or correct
sentence is DENIED.
Dated this 18th day of May, 2011.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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