Cochrell v. USA

Filing 3

ORDER OF DISMISSAL - IT IS HEREBY ORDERED that the motion to stay and hold this action in abeyance [Doc. # 2 ] is denied. IT IS FURTHER ORDERED that the motion of Divian L. Cochrell to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc. # 1 ] is dismissed without prejudice.. Signed by District Judge Carol E. Jackson on 7/14/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIVIAN L. COCHRELL,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-1015 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Divian L. Cochrell 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). The Eighth Circuit
has not yet ruled on Cochrell’s request for authorization, having stayed the
matter pending the decision in Beckles v. United States, 137 S. Ct. 886 (2017).
Divian Cochrell v. United States, No. 16-2361 (8th Cir. Apr. 10 2017).
In support of his motion to stay, Cochrell 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 277–78.
Cochrell 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. 4:13-CV-544 (JCH)
(E.D. Mo. July 15, 2013), and Leobardo Barraza v. United States, No. 4:13-CV1194 (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. Cochrell 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 Cochrell’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
16, 2014).
Because Cochrell has already filed a request with the Eighth Circuit, this
Court will dismiss this case without prejudice as opposed to transferring it.
Cochrell may refile his § 2255 motion when he obtains authorization to do so.
Accordingly,
IT IS HEREBY ORDERED that the motion to stay and hold this action
in abeyance [Doc. # 2] is denied.

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IT IS FURTHER ORDERED that the motion of Divian L. Cochrell to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc. #1] is
dismissed without prejudice.

Dated this 14th day of July, 2017.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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