Smith v. United States of America

Filing 4

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the governments motion to dismiss [ECF No. 3] is GRANTED. IT IS FURTHER ORDERED that movants motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DISMISSED, and movants motion for appointment of counsel [ECF No. 2] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.An Order of Dismissal will be filed separately. 3 Signed by District Judge Jean C. Hamilton on 4/24/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN AVERY SMITH,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:14CV769 JCH

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. It is apparent on the face of the motion that movant is not
entitled to relief. Therefore, the motion will be dismissed without further proceedings.
Movant was convicted in this Court on one count of wire fraud and sentenced to five
years’ probation. United States v. Smith, 4:10CR142 JCH (E.D. Mo.). On January 10, 2011,
jurisdiction over movant’s probation was transferred to the United States District Court for the
Western District of New York. United States v. Smith, 1:11CR24 RJA (W.D.N.Y.) In August
2012, movant pled guilty to violating the conditions of parole, and in May 2013 the Western
District of New York sentenced movant to time served. Id.
Movant’s sole contention appears to be that the grant of immunity contained in his plea
agreement should have barred his prosecution for parole violation in the Western District of New
York. The government has moved to dismiss the motion on the basis that the ground raised is
non-cognizable.
This Court does not have jurisdiction to rule on the validity of a sentence imposed by the
Western District of New York. See 28 U.S.C. § 2255(a); Farrow v. United States, 580 F.2d

1339, 1349 (9th Cir. 1978) (motion must be filed in sentencing court). Section 2255 motions
must be filed in the district where the judgment that is being challenged was imposed.
Because it is clear that jurisdiction does not lie in this Court, the Court will not issue a
certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the government’s motion to dismiss [ECF No. 3] is
GRANTED.
IT IS FURTHER ORDERED that movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 is DISMISSED, and movant’s motion for appointment of
counsel [ECF No. 2] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
An Order of Dismissal will be filed separately.
Dated this 24th day of April, 2014.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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