Kiderlen v. United States of America

Filing 4

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that movant's motion for leave to proceed in forma pauperis [ECF No. 2 ] is DENIED as moot. IT IS FURTHER ORDERED that this action is DISMISSED. An Order of Dismissal will be filed separately. Signed by District Judge E. Richard Webber on 08/13/2013. (CBL)

Kiderlen v. United States of America

Doc. 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN DUANE KIDERLEN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13CV01518 ERW

MEMORANDUM AND ORDER
This matter is before the Court on movant’s successive motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255. Because the motion has not been
certified by the United States Court of Appeals for the Eighth Circuit as required by the
AEDPA, the Court will summarily dismiss it.
Movant was convicted of one count of transporting child pornography, and the
Court sentenced him to 240 months’ imprisonment. United States v. Kiderlen,
4:05CR721 ERW (E.D. Mo.). The Eighth Circuit Court of Appeals affirmed the
judgment. Id. Movant subsequently brought a motion to vacate under § 2255, which
the Court denied on the merits. Kiderlen v. United States, 4:09CV1178 ERW (E.D.
Mo.). The Eighth Circuit did not give movant a certificate of appealability. Id.
Movant now seeks to challenge his conviction on the basis that the government
withheld evidence from him. The Court notes that movant did not title the instant

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motion as coming under § 2255: he calls it a petition for writ of habeas corpus ad
subjiciendum. However, movant is not permitted to circumvent the AEDPA’s second
or successive petition requirements simply by labeling the motion as something other
than what it is. E.g., Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (pleading labeled
as a Rule 60(b) motion that is in substance a habeas petition “should be treated
accordingly”). “Call it a motion for a new trial, arrest of judgment, mandamus,
prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus,
ejectment, quare impedit, bill of review, writ of error, or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is substance that controls.”
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). In this instance, the relief
petitioner seeks is available only through a § 2255 motion. See 28 U.S.C. § 2255(a).
Under 28 U.S.C. § 2255(h):
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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Absent certification from the United States Court of Appeals, this Court lacks
authority to grant the requested relief. As a result, the motion will be dismissed. See
28 U.S.C. § 2255, Rule 4.
Finally, petitioner has failed to demonstrate that jurists of reason would find it
debatable whether this action is successive under § 2255(h). Thus, the Court will not
issue a certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that movant’s motion for leave to proceed in
forma pauperis [ECF No. 2] is DENIED as moot.
IT IS FURTHER ORDERED that this action is DISMISSED.
An Order of Dismissal will be filed separately.
So Ordered this 13th day of August, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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