Love v. USA

Filing 5

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that movant's motion to vacate under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED. An Order of Dismissal will be filed separately. Signed by District Judge E. Richard Webber on 2/23/16. (EAB)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ROBERT CARLOS LOVE, Movant, v. UNITED STATES OF AMERICA, Respondent, ) ) ) ) ) ) ) ) ) No. 4:15CV1959 ERW MEMORANDUM AND ORDER This matter is before the Court on review of movant’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion is successive, but movant has not received authorization to file it from the Court of Appeals. As a result, the Court will dismiss it without further proceedings. See 28 U.S.C. § 2255, Rule 4. Movant pled guilty to possession with intent to distribute cocaine base, felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. United States v. Love, 4:05CR683 ERW (E.D. Mo.). On December 14, 2006, the Court sentenced him to consecutive terms of 60 months, 140 months, and 120 months’ imprisonment. Id. Movant filed a timely § 2255 motion, and the Court dismissed it on April 8, 2009. Love v. United States, 4:08CV1619 ERW (E.D. Mo.). In the instant motion, movant contends that his sentence should be reduced in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court of the United States held the “residual clause” of the Armed Career Criminal Act (“the ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), to be unconstitutionally vague. Movant, however, was not sentenced under the ACCA; so it does not appear that Johnson provides him with relief. 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 . . . Absent certification from the United States Court of Appeals, this Court lacks authority under § 2255 to grant movant’s requested relief. As a result, the motion is dismissed. Finally, movant has failed to show that jurists of reason could disagree whether the motion is successive. 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 to vacate under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED. An Order of Dismissal will be filed separately. So Ordered this 23rd day of February, 2016. E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE 2

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