Limbrick v. USA
Filing
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MEMORANDUM OPINION regarding petitioner's petition. Signed by Judge Thad Heartfield on 7/29/2014. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
EDWIN T. LIMBRICK
§
VS.
§
UNITED STATES OF AMERICA
§
CIVIL ACTION NO. 1:14cv343
MEMORANDUM OPINION
Edwin T. Limbrick, an inmate confined within the Bureau of
Prisons, proceeding pro se, filed this motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255.
Factual Background and Prior Proceedings
In 1996, following a jury trial, movant was convicted of
conspiring to obstruct interstate commerce by robbery, obstructing
interstate commerce by robbery and using or carrying a firearm
during and in relation to a crime of violence.
He was sentence to
a total of 1020 months imprisonement.
Movant subsequently filed a motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255.
The motion to
vacate was denied by this court on September 22, 2004. Limbrick v.
United States, No. 1:01cv268.
The Fifth Circuit denied movant’s
request for a certificate of appealability.
Discussion
After considering the prior proceedings in movant’s case, it
must be concluded that the current filing should be dismissed as a
second or successive motion to vacate, set aside or correct
sentence.
Pursuant to 28 U.S.C. § 2255, a second or successive
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motion to vacate may only be entertained by a district court if it
has been certified by the appropriate court of appeals to be based
on either: (1) newly discovered evidence that if proven would
prevent any reasonable factfinder from finding the movant guilty of
the offense charged or (2) a previously unavailable new rule of
constitutional law made retroactive to cases on collateral review
by the Supreme Court.
As described above, movant previously filed a motion to
vacate, set aside or correct sentence challenging his conviction
that was denied by this court on merits.
Accordingly, movant sis
required to receive permission from the United States Court of
Appeals for the Fifth Circuit before he may proceed with a second
motion to vacate.
As movant does not state he has received such
permission, his current filing must be dismissed without prejudice
as successive.
Conclusion
For the reasons set forth above, this motion to vacate, set
aside or correct sentence will be dismissed without prejudice for
failure to obtain permission from the Fifth Circuit.
A judgment
shall be entered in accordance with this memorandum opinion.
In addition, the court is of the opinion that a certificate of
appealability should not issue in this matter.
Jurists of reason
would not find it debatable whether movant has made a substantial
showing of the denial of a constitutional right or that a procedural ruling was incorrect.
Further, the issues asserted in the
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motion to vacate are not worthy of encouragement to proceed
further.
SIGNED this the 29 day of July, 2014.
____________________________
Thad Heartfield
United States District Judge
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