Prince v. USA

Filing 4

MEMORANDUM AND ORDER. (See Full 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 h abeas action [Doc. 2 ] is DENIED without prejudice. IT IS FURTHER ORDERED that movants 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 br ing the motion 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 E. Richard Webber on 7/28/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STANLEY PRINCE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-995-ERW

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. 1] 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. 2]. Specifically, the motion to hold this
case in abeyance states, “On June 24, 2016, movant filed a petition in the United States
Court of Appeals for the Eighth Circuit asking permission to file a successive petition
under 28 U.S.C. §2255(h)(2) and 28 U.S.C. §2244(b)(2)(A), 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. The Eighth Circuit has not yet ruled on this request.”
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;
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).1 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. 2] 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
1

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

States Court of Appeals for the Eighth Circuit to bring the motion 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.
Dated this 28th day of July, 2016.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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