Holly v. Gotcher et al

Filing 7

ORDER by District Judge James H. Payne: recharacterizing Complaint and Supplemental Complaint as 2255 motion to vacate and transferring case to 10th Circuit Court (re: 2nd or Successive 2255 Petition) (terminates case) (cjt, Deputy Clerk)

Holly v. Gotcher et al

Doc. 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA
MELVIN ELLIS HOLLY, ) ) Plaintiff, ) ) vs. ) ) WARREN GOTCHER, dba Gotcher Law ) Firm, DENNIS DELA, individually, ROY ) ALFORD, individually, and LATIMER ) COUNTY BOARD OF COUNTY ) COMMISSIONERS, STATE OF ) OKLAHOMA, ) ) Defendants. )

Case No. 10-CV-405-JHP (04-CR-00114-SPF and CIV-08-404-SPF)

ORDER
The Defendant is hereby notified that this Court has recharacterized

Defendant's Complaint filed October 29, 2010, and Supplemental Complaint filed November 11, 2010 as a motion to vacate, set aside or correct sentence pursuant to §2255. See Castro v. United States, 124 S.Ct. 786 (2003). This is therefore Defendant's second § 2255 motion. On October 24, 2008, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 in Case No. CIV-08-404-SPF. Defendant alleged ineffective assistance of counsel at the trial and appellate levels. The trial court denied relief on September 17, 2009, and the Tenth Circuit Court of Appeals dismissed the appeal on February 5, 2010. United States v. Holly, 364 Fed.App'x 471 (10th Cir. 2010).

Dockets.Justia.com

The provisions of 28 U.S.C. § 2244(b)(3)(A) require a defendant to file a motion in the Tenth Circuit Court of Appeals for an order authorizing this Court to consider this second and successive application. After review of the records, this Court finds Defendant's Motion is subject to the requirements of 28 U.S.C. § 2244(b). Accordingly, this Court directs the Clerk of the Court to transfer this motion to the Tenth Circuit Court of Appeals in the interests of justice pursuant to 28 U.S.C. § 1631 and Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997); Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997). IT IS SO ORDERED this 17th day of November, 2010.

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