Holder v. United States of America

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS FURTHER ORDERED that the motion to vacate under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that movant's motion to stay [ECF No. 2 ] is DENIED. IT IS FURTHER ORDERED that counsel's motion for leave to appear pro hac vice [ECF No. 3 ] is GRANTED. An Order of Dismissal will be filed separately. Signed by District Judge E. Richard Webber on 5/19/2016. (CBL)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION NORRIS G. HOLDER, Movant, v. UNITED STATES OF AMERICA, Respondent, ) ) ) ) ) ) ) ) ) No. 4:16CV654 ERW MEMORANDUM AND ORDER This matter is before the Court on Norris Holder’s successive motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion must be dismissed. Movant was convicted of bank robbery by force or violence and carrying a firearm during a crime of violence and committing murder. United States v. Holder, 4:97CR141 ERW (E.D. Mo.). The Court sentenced him to death on both counts. He sought § 2255 relief in 2003, and the Court denied the motion. Holder v. United States, 4:03CV923 ERW (E.D. Mo.). Both judgments were affirmed. Movant filed the instant motion seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He states that the “residual clause” in 18 U.S.C. § 924(c)(3)(B) is void for vagueness after Johnson. Movant moves to stay this action pending authorization from the Court of Appeals for the Eighth Circuit allowing him to file a successive motion in this Court. The Court lacks the authority to grant the request. See 28 U.S.C. § 2244(b)(3)(A); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (unauthorized successive petition should be “dismiss[ed] for failure to obtain authorization from the Court of Appeals or, in its discretion, [the district court ] may transfer the [petition] to the Court of Appeals.”). As a result, the motion is dismissed without prejudice. Finally, movant has failed to demonstrate that jurists of reason would find it debatable whether the petition is successive and unauthorized. Thus, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c). Accordingly, IT IS FURTHER ORDERED that the motion to vacate under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that movant’s motion to stay [ECF No. 2] is DENIED. IT IS FURTHER ORDERED that counsel’s motion for leave to appear pro hac vice [ECF No. 3] is GRANTED. An Order of Dismissal will be filed separately. So Ordered this 19th day of May, 2016. E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE 2

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