Bishop vs. USA
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion to stay and hold this action in abeyance [Doc. # 1 ] is denied. IT IS FURTHER ORDERED that the motion of DeAngelo Bishop to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc. # 2 ] is dismissed without prejudice. Signed by District Judge Carol E. Jackson on 7/13/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:16-CV-941 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on the motion of DeAngelo Bishop to
hold this case in abeyance pending authorization from the Eighth Circuit to file
a successive motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. See 28 U.S.C. § 2255(h)(2); 28 U.S.C. § 2244(b)(3).
Circuit has not yet ruled on Bishop’s request for authorization, having stayed
the matter pending the decision in Beckles v. United States, 137 S. Ct. 886
(2017). DeAngelo Bishop v. United States, No. 16-2302 (8th Cir. Apr. 11,
In support of his motion to stay, Bishop primarily relies on Rhines v.
Weber, 544 U.S. 269 (2005).
In Rhines, the Supreme Court held that a
district court could hold a federal habeas petition in abeyance while the
petitioner pursued his unexhausted claims in state court. Rhines, 544 U.S. at
Bishop also cites Ken Warren v. United States, No. 4:16-CV-893
(ERW) (E.D. Mo. July 19, 2016), Jerome Williams v. United States, No. 4:13CV-544 (JCH) (E.D. Mo. July 15, 2013), and Leobardo Barraza v. United
States, No. 4:13-CV-1194 (SNLJ) (E.D. Mo. June 27, 2013). In Warren, the
court ultimately vacated the order holding the case in abeyance, pending a
decision from the Eighth Circuit. Bishop is correct that similar requests for
abeyance were granted in Williams and Barraza.
The 28 U.S.C. § 2255(h) authorization requirement is jurisdictional.
Accordingly, this Court does not have jurisdiction over Bishop’s successive
motion to vacate until the Eighth Circuit grants authorization. Burton v.
Stewart, 549 U.S. 147 (2007); see, e.g., Woods v. United States, 805 F.3d
1152 (8th Cir. 2015). When a second or successive motion to vacate is filed
without authorization, the district court has two options:
it can dismiss the
motion or, in its discretion, transfer the motion to the court of appeals. Boyd v.
United States, 304 F.3d 813, 814 (8th Cir. 2002). Consequently, the Court
cannot hold the case in abeyance. See James v. United States, No. 4:16-CV980 (JCH), 2016 WL 3667976 (E.D. Mo. July 11, 2016); Wilson v. United
States, No. 4:16-CV-894 (AGF), 2016 WL 3402620 (E.D. Mo. June 21, 2016);
Parks v. United States, No. 4:14-CV-01122, 2014 WL 3529687 (E.D. Mo. July
Because Bishop has already filed a request with the Eighth Circuit, this
Court will dismiss this case without prejudice as opposed to transferring it.
Bishop may refile his § 2255 motion when he obtains authorization to do so.
IT IS HEREBY ORDERED that the motion to stay and hold this action
in abeyance [Doc. # 1] is denied.
IT IS FURTHER ORDERED that the motion of DeAngelo Bishop to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc. #2] is
dismissed without prejudice.
Dated this 13th day of July, 2017.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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