United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRICT JUDGE
matter is before the Court on movant's motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. §
2255. In the instant motion, movant claims that the new
Supreme Court case of Johnson v. United States, 135
S.Ct. 2551 (2015), decided in June of 2015, should be applied
to his case in order to reduce his sentence. The motion is a
“second or successive motion” within the meaning
of 28 U.S.C. §§ 2244 & 2255 but has not been
certified by the United States Court of Appeals for the
Eighth Circuit as required by the AEDPA. Movant's motion
will be denied and dismissed as successive. His motion to
stay this action will be denied.
11, 2002, movant was convicted after a jury trial, of
possessing with intent to distribute cocaine base (Count I);
carrying or possessing a firearm in furtherance of drug
trafficking (Count II); and being a felon in possession of a
firearm (Count III). See United States v. Webb, No.
4:02-CR-127 JCH (E.D.Mo.).
September 12, 2002, petitioner was sentenced to 322
months' imprisonment (262 months' on Count I, 120
months' on Count III, concurrent, and 60 months on Count
II consecutive)). Movant appealed his conviction and
sentence, however, the Eighth Circuit Court of Appeals
affirmed. See United States v. Webb, No. 02-3611
(8th Cir. 2003).
filed his first motion to vacate, brought pursuant to 28
U.S.C. § 2255, on December 13, 2004. See Webb v.
United States of America, No. 4:04CV1730 JCH (E.D.Mo.
2004). This Court denied the motion, and the United States
Court of Appeals for the Eighth Circuit denied movant's
application for a certificate of appealability on March 3,
2005. See Webb v. United States, No. 05-1492
(8th Cir. 2005).
Under 28 U.S.C. § 2255:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
case, movant argues that his sentence is unconstitutional
after Johnson v. United States, 135 S.Ct.
2551 (2015). He has filed an application for permission to
file a successive motion to vacate in the Court of Appeals
for the Eighth Circuit, which remains pending. Turner v.
United States, No. 16-2138 (8th Cir.). Movant seeks to
hold the instant case in abeyance pending the decision of the
Court of Appeals.
requirement that prisoners obtain authorization from the
circuit court before filing a second or successive petition
in the district court is jurisdictional. Burton v.
Stewart, 127 S.Ct. 793, 796 (2007). “Federal
courts are courts of limited jurisdiction. The requirement
that jurisdiction be established as a threshold matter
springs from the nature and limits of the judicial power of
the United States and is inflexible and without
exception.” Kessler v. Nat'l Enterprises,
Inc., 347 F.3d 1076, 1081 (8th Cir. 2003) (quotation
movant has not received permission from the Court of Appeals
to file this action, this Court lacks jurisdiction to
entertain the motion or to hold this matter in abeyance.
Therefore, the motion is denied, and this action is dismissed
movant has not met the burden for issuing a certificate of