Cross v. USA

Filing 2

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 . 1] 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 no certificate of appealability shall issue. 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 Rodney W. Sippel on 7/12/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY FRANCIOSA CROSS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-1113-RWS

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 his 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. #1]. Specifically, the motion to hold this case in abeyance states,
“On June 25, 2016,1 movant filed a petition in the United States Court of Appeals for the Eighth
Circuit asking permission to file a second 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

The petitioner was received by the Eighth Circuit Court of Appeals on June 24, 2016; however,
it was placed in the prison mailing system at FCI-Greenville at Greenville, Illinois, on June 20,
2016. See Cross v. United States, No. 16-2826 (8th Cir. 2016).

(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. #1] 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 no certificate of appealability shall issue.
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 12th day of July, 2016.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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