Carrier v. USA

Filing 4

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that movant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Catherine D. Perry on 7/8/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PHILLIP CARRIER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16-CV-957 CDP

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. The motion is denied without prejudice.
Movant argues that his sentence is unconstitutional after Johnson v. United States, 135
S.Ct. 2551 (2015). The motion is successive. Carrier v. United States, No. 4:10-CV-1151 CDP.
He has filed an application for permission to file a successive motion to vacate in the Court of
Appeals for the Eighth Circuit, which remains pending. Carrier v. United States, No. 16-2339
(8th Cir.). Movant seeks to hold the instant case in abeyance pending the decision of the Court
of Appeals.
The requirement that prisoners obtain authorization from the circuit court before filing a
second or successive petition in the district court is jurisdictional. Burton v. Stewart, 127 S. Ct.
793, 796 (2007).
“Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be
established as a threshold matter springs from the nature and limits of the judicial power of the
United States and is inflexible and without exception.” Kessler v. Nat’l Enterprises, Inc., 347
F.3d 1076, 1081 (8th Cir. 2003) (quotation marks omitted; emphasis added).

Because movant has not received permission from the Court of Appeals to file this
action, this Court lacks jurisdiction to entertain the motion or to hold this matter in abeyance.
Therefore, the motion is denied, and this action is dismissed without prejudice. See Fed. R. Civ.
P. 12(h)(3) (dismissal is required, not discretionary).
Movant will not be prejudiced by the dismissal of this action. The Court will hear his
successive petition if and only if the Court of Appeals authorizes its filing.
Finally, movant has not met the burden for issuing a certificate of appealability under 28
U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 8th day of July, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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