Thompson v. United States of America

Filing 3

ORDER Dismissing re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Antonio Djuan Thompson. Signed by Honorable Timothy D. DeGiusti on 3/8/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,

vs.
ANTONIO DJUAN THOMPSON,
Defendant.

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Case No. CR-08-166-D
CIV-13-217-D

ORDER OF DISMISSAL
Before the Court is Defendant’s March 4, 2013 Motion [Doc. No. 81] to Vacate, Set Aside
or Correct Sentence, pursuant to 28 U. S. C. § 2255(f)(3). Defendant, appearing pro se, seeks relief
from a sentence imposed by this Court in 2009. After his conviction and sentence were affirmed
on appeal,1 he sought relief pursuant to § 2255, and the motion was denied. See Order of June 15,
2012 [Doc. No. 71]. On January 14, 2013, Defendant filed another motion for relief pursuant to §
2255 [Doc. No. 73]. However, he moved to withdraw that motion, and his motion to withdraw was
granted by Order of January 30, 2013 [Doc. No. 78].
On February 22, 2013, Defendant filed a request [Doc. No. 79] with the Tenth Circuit Court
of Appeals for authorization to file a second or successive § 2255 motion. On February 25, 2013,
the Circuit denied authorization, finding Defendant had not demonstrated a basis for such
authorization, as required by 28 U. S. C. § 2255(h). See In re: Antonio Djuan Thompson, No. 136041, Order (10th Cir. Feb. 25, 2013) (unpublished). Defendant’s current motion [Doc. No. 81] for
§ 2255 relief was filed approximately one week after the Circuit denied his request.
Without prior authorization from the Tenth Circuit Court of Appeals, this Court lacks subject

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United States v. Thompson, 402 F. App’x 378, 386 (10th Cir. 2010) (unpublished opinion).

matter jurisdiction to consider Defendant’s motion. United States v. Nelson, 465 F.3d 1145, 1149
(10th Cir. 2006); United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002). Where a § 2255
motion is filed without the Circuit’s authorization, the Court may transfer the matter to the Circuit
for consideration “if it determines it is in the interest of justice to do so under [28 U. S. C. ] § 1631,
or it may dismiss the motion or petition for lack of jurisdiction.” In re Cline, 531 f.3d 1249, 1252
(10th Cir. 2008). Factors to be considered in determining whether a transfer is in the interest of
justice include “whether the claims alleged are likely to have merit, and whether the claims were
filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the
requisite jurisdiction.” Id. at 1251. “Where there is no risk that a meritorious successive claim will
be lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not
in the interest of justice to transfer the matter.” Cline, 531 F.3d at 1252.
In this case, the Court finds that a transfer is not in the interest of justice because the Tenth
Circuit has denied Defendant’s request to file a second or successive § 2255 motion, and the Circuit
explained its reasons for that denial in an order which was filed only a few days before Defendant
filed the current § 2255 motion. A transfer at this time would unnecessarily burden the Circuit.
Under the circumstances, the Court finds that the proper disposition of this matter is a dismissal for
lack of jurisdiction. Accordingly, Defendant’s motion [Doc. No. 81] is DISMISSED for lack of
jurisdiction.
IT IS SO ORDERED this 8th day of March, 2013.

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