Bredy v. United States of America

Filing 2

ORDER Denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Phillip Bredy. Signed by Honorable Timothy D. DeGiusti on 4/5/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
PHILLIP D. BREDY,
Defendant.

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Case No(s). CIV-16-686-D
CR-98-135-D

ORDER
Before the Court is Defendant’s Second Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 134]. For the reasons stated
below, Defendant’s motion is dismissed for failure to obtain authorization to file a
second § 2255 motion.
On August 5, 1998, Defendant was indicted on four counts of armed robbery
and firearm violations. He was convicted on all counts and sentenced to a term of
life imprisonment. Defendant’s sentence was affirmed by the Tenth Circuit. See
United States v. Bredy, 209 F.3d 1193 (10th Cir. 2000). On August 27, 2001,
Defendant filed his first § 2255 Motion to Vacate, Set Aside or Correct Sentence
[Doc. No. 91], which was denied [Doc. No. 114]. On June 20, 2016, Defendant filed
a second § 2255 motion, seeking relief pursuant to the Supreme Court’s recent
decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569

(2015).1 However, under 28 U.S.C. § 2255(h)(2), Defendant was required to obtain
authorization to file a second § 2255 motion. See id. (“A second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate court of
appeals to contain … a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”).
A review of the docket sheet shows the Tenth Circuit docketed Defendant’s
motion to file a second § 2255 motion [Doc. No. 137]. However, to date, the circuit
has not issued a ruling. In the absence of such authorization, the Court lacks
jurisdiction to address the merits of a second § 2255 motion. In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008). Accordingly, Defendant’s motion is denied.
CONCLUSION
Defendant’s Second Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 [Doc. No. 134] is DENIED as set forth herein.
IT IS SO ORDERED this 5th day of April, 2017.

1

In Welch v. United States, __U.S. __, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387
(2016), the Supreme Court held Johnson announced a substantive rule that has
retroactive effect in cases on collateral review.
2