Boyce 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. Signed by District Judge Rodney W. Sippel on 8/6/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DENISE BOYCE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13-CV-1435-RWS

MEMORANDUM AND ORDER
This matter is before the Court on Denise Boyce’s motion to vacate, set aside,
or correct her sentence under 28 U.S.C. § 2255.
Movant challenges her November 8, 2007 judgment and sentence for
conspiracy to distribute and possess with intent to distribute heroin in United States
v. Boyce, No. 4:07-CR-240-RWS (E.D. Mo.). Movant asserts that her sentence
enhancement “was not determined by any jury” and “should not have been applied
in the Pre-Sentence Report.”
The Court’s records show that movant has already filed, and the Court has
already dismissed, a previous § 2255 motion attacking this conviction. See Boyce v.
United States, No. 4:12-CV-1694-RWS (E.D. Mo).

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."
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 she 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 6th day of August, 2013.

UNITED STATES DISTRICT JUDGE

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