Flenoid v. USA

Filing 2

MEMORANDUM AND ORDER OF TRANSFER. IT IS HEREBY ORDERED that the 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Larry Flenoid is DENIED, without prejudice, because movant did not obtain permission from the Eighth Circuit Court of App eals to bring the motion in this court. See 28 U.S.C. 2255. IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. 1631. Signed by District Judge Rodney W. Sippel on 9/22/15. (CAR)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LARRY FLENOID, Movant, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) No. 4:15-CV-1444-RWS MEMORANDUM AND ORDER OF TRANSFER This matter is before the court on the motion of Larry Flenoid to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. ' 2255. On January 22, 2004, a jury found movant guilty of escape from custody, in violation of 18 U.S.C. ยง 751(a)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. ยงยง 922(g)(1) and 924(e)(1). Movant was sentenced to concurrent terms of five years and life imprisonment, respectively. In the instant action, movant is challenging the special conditions of his sentence. The Court's records show that movant previously brought a motion for relief under 28 U.S.C. ' 2255, which this Court denied on the merits on June 18, 2009. See Flenoid v. United States, No. 4:07-CV-8-RWS (E.D.Mo). Movant did not prevail on appeal. 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 United States Court of Appeals for the Eighth Circuit to maintain the instant ' 2255 motion in this court, the court lacks authority to grant movant the relief he seeks. Rather than dismiss this action, the court will deny movant relief, without prejudice, and transfer the motion to the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. ' 1631. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Coleman v. United States, 106 F.3d 339 (10th Cir. 1997); Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996). 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. 2 IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. ' 1631. Dated this 22nd day of September, 2015. _________________________________ UNITED STATES DISTRICT JUDGE 3

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