United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court upon review of movant Kevin
White's “Motion for Lack of Jurisdiction.”
Therein, movant states he seeks to vacate the sentence
imposed in United States v. White, No.
4:11-cr-196-JCH-3 (E.D. Mo. Dec. 19, 2012). The motion is
actually an unauthorized successive 28 U.S.C. § 2255
motion, and will be dismissed for lack of jurisdiction.
28, 2012, movant pleaded guilty to laundering money and
conspiring to distribute and possess with intent to
distribute cocaine, heroin and marijuana. On December 19,
2012 he was sentenced to serve 188 months in prison to be
followed by 5 years of supervised release. United States
v. White, No. 4:11-cr-196-JCH-3 (E.D. Mo. Dec. 29,
2012). The judgment and sentence were affirmed on direct
appeal. See United States v. White, No. 13-1035 (8th
Cir. Nov. 5, 2013). On July 27, 2015, the district court
amended the judgment to reduce movant's sentence to 170
months pursuant to 28 U.S.C. § 994(u).
August 3, 2015, movant filed a motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255. On
October 18, 2016, the Court denied the motion after
determining it was untimely and that movant was not entitled
to equitable tolling. See White v. United States,
No. 4:15-cv-1193-JCH (E.D. Mo. Oct. 18, 2016). Movant
appealed, but on April 19, 2017 the appeal was dismissed.
White v. United States, No. 16-4096 (8th Cir. Apr.
19, 2017). Movant initiated this action on August 30, 2019 by
filing the instant “Motion for Lack of Jurisdiction,
” asking this Court to vacate his sentence. In support,
movant asserts numerous deficiencies in his criminal
proceedings, including invalidity of the indictment,
ineffective assistance of counsel, and lack of jurisdiction.
the instant motion is not titled as one brought pursuant to
28 U.S.C. § 2255, it is an attempt to launch a
collateral attack on movant's sentence. Such claims must
be brought under § 2255. See Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005) (pleading labeled as a
Rule 60(b) motion that is in substance a habeas petition
“should be treated accordingly”). “Call it
a motion for a new trial, arrest of judgment, mandamus,
prohibition, coram nobis, coram vobis, audita querela,
certiorari, capias, habeas corpus, ejectment, quare impedit,
bill of review, writ of error, or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is
substance that controls.” Melton v. United
States, 359 F.3d 855, 857 (7th Cir. 2004).
noted above, movant previously filed a § 2255 motion
that was dismissed as untimely. The instant motion is
therefore a “second or successive” motion as
defined in 28 U.S.C. § 2255(h). See Diaz-Diaz v.
United States, 297 Fed.Appx. 574, 575 (8th Cir. 2008)
(per curiam) (a later motion for collateral relief is
considered “second or successive” if the earlier
motion was dismissed as untimely). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”)
requires that a second or successive motion must be certified
by the appropriate circuit court of appeals before it may be
filed in the district court. 28 U.S.C. § 2255(h). This
requirement is jurisdictional. Burton v. Stewart,
127 S.Ct. 793, 796 (2007). Movant may not bypass the
authorization requirement by purporting to invoke some other
procedure or by labeling the motion as something other than
what it is.
movant did not obtain authorization from the Eighth Circuit
Court of Appeals before filing the instant motion, this Court
lacks jurisdiction to grant the relief requested therein. The
Court must therefore dismiss this action for lack of
jurisdiction. This dismissal will be without prejudice to
refiling if, and when, movant obtains the necessary
authorization from the United States Court of Appeals for the
Court has considered whether to issue a certificate of
appealability. To do so, the Court must find a substantial
showing of the denial of a federal constitutional right.
See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.
1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a Court could resolve the
issues differently, or the issues deserve further
proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)). Because movant has made no such
showing, the Court will not issue a certificate of
IT IS HEREBY ORDERED that movant's
“Motion for Lack of Jurisdiction” is