Lindsey v. USA

Filing 5

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 2 ] is DENIED. Signed by District Judge E. Richard Webber on 01/12/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT LINDSEY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:14CV02097 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. The Court will summarily dismiss it. See 28 U.S.C.
§ 2255, Rule 4.
Movant was indicted on gun and drug charges on December 1, 2005. United States v.
Lindsey, 4:05CR682 ERW (E.D. Mo.). On June 28, 2006, a jury found him guilty on all
charges. Movant filed a motion to vacate, set aside, or correct sentence on February 17, 2009.
Lindsey v. United States, 4:09CV267 ERW (E.D. Mo.). On November 30, 2010, the Court
dismissed it after reviewing the merits. The Court of Appeals declined movant’s application for
a certificate of appealability.
Movant filed a second or successive motion to vacate on December 2, 2013, which the
Court summarily dismissed. Lindsey v. United States, 4:13CV2438 ERW (E.D. Mo.). Once
again, the Court of Appeals denied his application for a certificate of appealability.
In the instant motion, movant claims that the Court incorrectly counted a Missouri
suspended imposition of sentence as a conviction.

Under 28 U.S.C. § 2255(h), a successive motion to vacate must first be presented to the
Court of Appeals. Since movant has not done this, the Court must dismiss this action without
further proceedings.
Finally, petitioner has failed to demonstrate that jurists of reason would find it debatable
whether the petition is successive. Thus, the Court will not issue a certificate of appealability.
28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF
No. 2] is DENIED.
So Ordered this 12th day of January, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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