McCoy v. USA

Filing 8

ORDER. IT IS ORDERED that Petitioner McCoy's 7 Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 is DENIED for lack of certification. If Petitioner wishes for the Court to hear this or another successive motion unde r Section 2255, he should first move for certification in the Ninth Circuit Court of Appeals by demonstrating that he has met the requirements of Section 2255(h). Signed by Chief Judge Miranda M. Du on 9/28/2023. (Copies have been distributed pursuant to the NEF - AMMi)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DARREN LAMONT McCOY,

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v.

Petitioner,

Case Nos. 2:11-cr-00438-MMD-CWH
2:13-cv-02343-MMD
ORDER

UNITED STATES OF AMERICA,
Respondent.

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Before the Court is pro se Petitioner Darren Lamont McCoy’s motion to vacate, set

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aside, or correct sentence under 28 U.S.C. § 2255 (“Motion”). (ECF No. 235.)1 The Court

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denies Petitioner’s Motion because he previously submitted another motion to vacate

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under Section 2255 in 2013 (ECF No. 119), and he has not obtained an order from the

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Court of Appeals authorizing this Court to consider a second petition under the same

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statute.

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Before this Court may consider a second or successive motion under 28 U.S.C. §

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2255, the Ninth Circuit Court of Appeals must certify the second or successive motion

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according to the requirements under 28 U.S.C. § 2244. See 28 U.S.C. § 2255(h); Jones

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v. United States, 36 F.4th 974, 981 (9th Cir. 2022). To obtain certification, the applicant

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must “move in the appropriate court of appeals for an order authorizing the district court

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to consider the application.” 28 U.S.C. § 2244(b)(3). The applicant must demonstrate that
the successive motion contains either: (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

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Court cites to the docket in Case No. 2:11-cr-00438-MMD-CWH-1,
Petitioner’s criminal case number. Petitioner’s related civil case is open as Case No. 2:13cv-02343-MMD. (ECF No. 119.)

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review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h). 2

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McCoy’s Motion has not been certified by the Circuit.

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It is therefore ordered that Petitioner McCoy’s Motion to Vacate, Set Aside or

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Correct Sentence under 28 U.S.C. § 2255 (ECF No. 235) is denied for lack of certification.

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If Petitioner wishes for the Court to hear this or another successive motion under Section

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2255, he should first move for certification in the Ninth Circuit Court of Appeals by

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demonstrating that he has met the requirements of Section 2255(h).

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DATED THIS 28th Day of September 2023.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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Court also notes that a one-year statute of limitations period begins to run
according to the considerations in 28 U.S.C. § 2255(f) and, in the case of a second or
successive petition, this limitations period generally depends on the date on which new
relevant evidence could have been discovered or on which the Supreme Court recognizes
a new right that forms the basis of the petition. See 28 U.S.C. §§ 2255(f)(2)-(4).
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