Washington v. United States of America

Filing 17

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 14 Report and Recommendations, ORDERED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, construed as a motion to vacate, set aside or correct Washingtons sentence pursuant to 28 U.S.C. § 2255, is DISMISSED for lack of jurisdiction. All other motions by either party not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 11/30/2016. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LYNETTA MAE WASHINGTON

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:16cv411
CRIM NO. 4:12CR00175-001

ORDER OF DISMISSAL
Petitioner Lynetta Mae Washington, a prisoner confined at FMC Carswell, brings this
construed motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. The
motion was referred to United States Magistrate Judge Christine A. Nowak, who issued a Report
and Recommendation concluding that the motion should be dismissed for lack of jurisdiction.
Washington has filed objections.
The present § 2255 motion is the second one filed by Washington. The first motion was
dismissed with prejudice as time-barred.

Washington v. United States, Civil Action No.

4:14cv367, 2016 WL 4508255 (E.D. Tex. Aug. 29, 2016). She did not file a notice of appeal. In
her objections, Washington argues about the decision dismissing her prior § 2255 motion as timebarred, but such complaints should have been raised in Civil Action No. 4:14cv367. She could
have appealed the decision of this Court, but she cannot challenge the decision in a new § 2255
proceeding. Washington must obtain permission from the Fifth Circuit in order to file a second or
successive § 2255 motion. 28 U.S.C. § 2244(b)(3)(A). The present motion must be dismissed for
lack of jurisdiction because Washington did not receive permission from the Fifth Circuit to file
it. United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Washington may file a new § 2255
motion if the Fifth Circuit gives her permission to file a second or successive § 2255 motion.
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The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Washington to the Report, the Court is
of the opinion that the findings and conclusions of the Magistrate Judge are correct and
Washington’s objections are without merit. Therefore, the Court hereby adopts the findings and
conclusions of the Magistrate Judge as the findings and conclusions of the Court. It is accordingly
.

ORDERED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241,
construed as a motion to vacate, set aside or correct Washington’s sentence pursuant to 28 U.S.C.
§ 2255, is DISMISSED for lack of jurisdiction. All other motions by either party not previously
ruled on are hereby DENIED.
SIGNED this 30th day of November, 2016.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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