Settle v. United States of America

Filing 2

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 Eighth Circuit Court of Appeals to bring the motion in this Court. See 28 U.S.C. § 2255. A separate Order of Dismissal shall accompany this Memorandum and Order. 1 Signed by District Judge Jean C. Hamilton on 9/13/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KELVIN SETTLE
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12-CV-1534-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Kelvin Settle’s “Claim for Ineffective
Assistance of Counsel” [Doc. #1], which will be liberally construed as a motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.1

1

The Court determines that it is not required to provide movant an opportunity
either to consent to the reclassification or to withdraw his motion, see United States
v. Morales, 304 F.3d 764 (8th Cir. 2002), because unlike the facts in Morales, the
motion at bar is movant’s second § 2255 motion, not his first. Cf. United States v.
Patton, 309 F.3d 1093 (8th Cir. 2002)(affirming denial of purported Rule 12(b)(2)
motion that actually was a second or successive § 2255 motion, without employing
Morales procedure); Boyd v. United States, 304 F.3d 813 (8th Cir. 2002)(where
prior § 2255 motion had been denied, Morales procedure was not required before
dismissal of motion that amounted to second or successive § 2255 motion).
Moreover, because the instant motion is successive, and appears to be untimely as
well, providing movant a Morales-type warning and an opportunity to withdraw his
motion would be of no avail to him.

After a jury found movant guilty of conspiracy to distribute and possess with
intent to distribute cocaine and cocaine base, movant was sentenced on October 30,
2008, to 120 months’ imprisonment and ten years’ supervised release. See United
States v. Settle, No. 4:07-CR-759-JCH (E.D. Mo.). Movant did not file a direct
appeal.
In support of the instant § 2255 motion, movant asserts numerous ineffectiveassistance-of-counsel claims. The Court’s records show that movant filed his first §
2255 motion to vacate on March 9, 2009. See Settle v. United States, No. 4:09CV-385-JCH (E.D. Mo). The motion was denied on the merits. The United States
Court of Appeals for the Eighth Circuit denied movant a certificate of appealability
and dismissed the appeal. Settle v. United States, No. 09-2096 (8th Cir. 2009).
Movant’s petition for a writ of certiorari was denied.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2255 now provides that a "second or successive motion
must be certified . . . by a panel of the appropriate court of appeals" to contain
certain information. Title 28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore 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."
2

Because movant did not obtain permission from the Eighth Circuit Court of
Appeals to maintain the instant § 2255 motion in this Court, the Court lacks
authority to grant movant the relief he seeks. As such, the instant action will be
summarily dismissed, without prejudice.
Therefore,
IT IS HEREBY ORDERED that the instant motion to vacate is DENIED,
without prejudice, because movant did not obtain permission from the Eighth Circuit
Court of Appeals to bring the motion in this Court. See 28 U.S.C. § 2255.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 13th day of September, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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