Dailey v. USA

Filing 9

ORDER OF DISMISSAL adopting 5 Report and Recommendation. The motion to vacate, set aside or correct sentence is dismissed without prejudice for lack of jurisdiction. All motions not previously ruled on are denied. Signed by Judge Ron Clark on 3/6/17. (tkd, )

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

ANTHONY RAY DAILEY, #60533-080

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 6:17cv85
CRIMINAL NO. 6:04CR00067-001

ORDER OF DISMISSAL
Movant Anthony Ray Dailey, an inmate confined at F.C.I. Beaumont, filed the abovestyled and numbered motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255. The case was referred to United States Magistrate Judge K. Nicole Mitchell, who issued
a Report and Recommendation concluding that the motion should be dismissed as a second or
successive § 2255 motion and because Mr. Dailey did not have permission from the Fifth Circuit
to file a second or successive § 2255 motion. Mr. Dailey has filed objections.
Mr. Dailey is attempting to bring a second or successive § 2255 motion based on recent
decisions by the Fifth Circuit, but the court lacks jurisdiction to consider the motion. A second
or successive § 2255 motion must be certified by a panel of the appropriate court of appeals. 28
U.S.C. § 2255(h). Mr. Dailey argues that he does not have to have the motion certified by the
Fifth Circuit because the recent decisions involve statutory interpretation. The Fifth Circuit has
held, however, that § 2255 does not authorize successive filings based on statutory interpretation;
instead, “Section 2255 authorizes a successive filing only when the Supreme Court announces a
new rule of constitutional law.” In re Lampton, 667 F.3d 585, 590 (5th Cir. 2012). The present
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motion must be dismissed for lack of jurisdiction because Mr. Dailey did not have permission from
the Fifth Circuit to file it. United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
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 Mr. Dailey to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. Dailey’s
objections are without merit. Therefore, the court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the court. It is accordingly
ORDERED that the motion to vacate, set aside or correct the sentence is DISMISSED
without prejudice for lack of jurisdiction. All motions not previously ruled on are DENIED.
So ORDERED and SIGNED this 6 day of March, 2017.

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Ron Clark, United States District Judge

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