Boswell v. United States of America

Filing 9

ORDER DISMISSING 1 Motion to Reduce Sentence - Johnson Claim filed by Dana E. Boswell. Signed by U.S. District Judge Lawrence L. Piersol on 11/29/17. (DJP)

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'i UNITED STATES DISTRICT COURT HLED NOV 2 9 2017 DISTRICT OF SOUTH DAKOTA ^CLERK SOUTHERN DIVISION **************************************************** * DANA BOSWELL, * Movant, CIV. 16-4085 * CR 98-40101 * * -vs- ORDER * UNITED STATES OF AMERICA, * * Respondent. * **************************************************** On June 16, 2016, Dana Boswell filed a Motion to Vaeate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Citing Johnson v. United States, 135 S.Ct. 2551 (2015), Boswell argued that the residual clause ofUSSG § 4B1.1(a)(2)is unconstitutionally vague, and that he should not have been sentenced as a career offender in 1999. Because it was his second § 2255 motion, Boswell also filed a motion in the Eighth Circuit for authorization to file a second or successive habeas petition. The Eighth Circuit's authorization is a prerequisite under 28 U.S.C. § 2244(b)(3)to the filing ofa second or successive habeas petition. Boswell asked this Court to hold his petition in abeyance until such time the Eighth Circuit rules on his application to file the second motion. This Court granted the motion, stating that Boswell's § 2255 motion will be held in abeyance until the Eighth Circuit rules on his application to file a second or successive motion, and that the § 2255 motion will be dismissed for lack of jurisdiction if the Eighth Circuit denies authorization for its filing. See, e.g., Boyd v. United States, 304 F.3d 813(8th Cir. 2002)("district court should dismiss[second or successive habeas petition] for failure to obtain authorization from the Court of Appeals"). f4 On November 14,2017,the Eighth Cireuit issued ajudgment denying Boswell's petition for authorization to file a sueeessive habeas applieation, and the Court's mandate was issued that same day. Accordingly, IT IS ORDERED that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody(doc. 1)is dismissed. Dated this day of November,2017. BY THE COURT: iwrence L. Piersol United States District Judge ATTEST: JOSEPH HAAS BY: (SEAL ^iPUTY

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