Opinion
CRIMINAL ACTION NO. 5:02-CR-31-TBR
08-18-2015
DARRELL N. WEST MOVANT/DEFENDANT v. UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF
cc: Movant/Defendant West, pro se United States Attorney Clerk, Sixth Circuit Court of Appeals
MEMORANDUM AND ORDER
This matter is before the Court on Movant/Defendant Darrell N. West's pro se motion pursuant to 28 U.S.C. § 2244 for authorization to file a second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 288).
In his motion, West acknowledges that he has already filed a § 2255 motion and that he now seeks to file a second or successive § 2255 motion. West correctly notes that prior to filing a second or successive § 2255 motion in this Court, he must have permission to do so from the Sixth Circuit. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); 28 U.S.C. § 2255(h) ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . . ."); see also In re Hanserd, 123 F.3d 922, 934 (6th Cir. 1997) (explaining that "[i]nmates who wish to file a second or successive motion to vacate sentence should first file a motion in [the Sixth Circuit] requesting permission under 28 U.S.C. §§ 2244, 2255").
It appears that West has filed his § 2244 motion seeking authorization in this Court rather than the Sixth Circuit. Thus, he has failed to obtain the requisite authorization from the appropriate court of appeals prior to filing the instant motion in the district court. "[W]hen a prisoner has sought § 2244(b)(3) permission from the district court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3) authorization from [the Sixth Circuit Court of Appeals], the district court shall transfer the document to [the Sixth Circuit Court of Appeals] pursuant to 28 U.S.C. § 1631." In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Accordingly,
IT IS ORDERED that West's § 2244 motion seeking authorization to file a second or successive § 2255 motion and the attached exhibits (DN 288) are TRANSFERRED to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631. Date: August 18, 2015
/s/
Thomas B. Russell, Senior Judge
United States District Court
cc: Movant/Defendant West, pro se
United States Attorney
Clerk, Sixth Circuit Court of Appeals
4413.003