Card v. USA

Filing 4

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that movant's motion to hold this case in abeyance pending a decision from the United States Court of Appeals for the Eighth Circuit on movant's petition to file a successive habeas action [Doc . 3] is DENIED without prejudice. IT IS FURTHER ORDERED that movant's motion to vacate is DENIED, without prejudice, because movant has not yet obtained permission from the United States Court of Appeals for the Eighth Circuit to bring the mot ion in this Court. See 28 U.S.C. § 2255(h). IT IS FURTHER ORDERED that the Clerk is directed to forward a copy of this Order to the Federal Public Defender. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 7/8/16. (EAB) (Copy of Memorandum and Order sent to Federal Public Defender on 7/8/16)(EAB).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PIERRE LAMONT CARD,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-984-CDP

MEMORANDUM AND ORDER
Before the Court is movant’s motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. ' 2255 [Doc. 2] and motion to hold this case in abeyance pending a decision from the
United States Court of Appeals for the Eighth Circuit on movant’s petition to file a successive
habeas action [Doc. 3].1 Specifically, the motion to hold this case in abeyance states, “On June
27, 2016, movant filed a petition asking permission to file a petition under 28 U.S.C. §2255 in
which to raise a claim that relies on Johnson, a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court.”
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

The Court notes that on or about June 24, 2016, movant also filed a pro se motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. ' 2255 in Card v. United States, No. 4:16-CV1051-CDP (E.D. Mo). Because the instant motion was filed by counsel and bears the lower
cause number, the Court will dismiss without prejudice the duplicative ' 2255 case, No. 4:16CV-1051-CDP.

(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; or
(2)
a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
When a second or successive habeas petition is filed in a District Court without the
authorization of the Court of Appeals, the Court should dismiss it, or, in its discretion and in the
interests of justice, transfer the motion to the Court of Appeals. Boyd v. U.S., 304 F.3d 813, 814
(8th Cir. 2002).2 Because movant has already filed an action with the Eighth Circuit Court of
Appeals as a request to file a second or successive § 2255 motion based on Johnson, this Court
will not transfer the instant action, but rather, will dismiss it without prejudice to refiling if, and
when, movant obtains permission to do so.
Accordingly,
IT IS HEREBY ORDERED that movant’s motion to hold this case in abeyance pending
a decision from the United States Court of Appeals for the Eighth Circuit on movant’s petition to
file a successive habeas action [Doc. 3] is DENIED without prejudice.
IT IS FURTHER ORDERED that movant’s motion to vacate is DENIED, without
prejudice, because movant has not yet obtained permission from the United States Court of
Appeals for the Eighth Circuit to bring the motion in this Court. See 28 U.S.C. § 2255(h).
2

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).
2

IT IS FURTHER ORDERED that the Clerk is directed to forward a copy of this Order
to the Federal Public Defender.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 8th day of July, 2016.

UNITED STATES DISTRICT JUDGE

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