Opinion
Case No. 2:04-CV-946 DB (Criminal Case No. 2:94-CV-150 DB).
April 11, 2005
ORDER
Before the Court is a motion characterized by Petitioner as one to Correct a Sentence That is Illegal and Void brought pursuant to 28 U.S.C. § 1651(a) and/or Federal Rule of Civil Procedure 60(b). Petitioner's request is in essence a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, and the Court will construe it as such. This is Petitioner's second attempt to bring a § 2255 motion before the Court. Petitioner filed his original motion on July 18, 2001. On January 31, 2002, the Court denied his motion as untimely. On appeal, the Tenth Circuit affirmed the Court's decision. United States v. Keebler, 49 Fed. Appx. 267 (10th Cir. 2002).
Petitioner now brings this present motion claiming that the Court should correct his sentence because it has become both void and illegal. Petitioner claims his sentence was improper under Blakely v. Washington, 125 S.Ct. 21 (2004) (and consequently under United States v. Booker, 125 S.Ct. 738 (2005)), arguing that his sentence was improperly based on facts found by the Court rather than a jury. Additionally, Petitioner claims that he did not fully understand the firearm count to which he pled guilty.
To file a second petition under 28 U.S.C. § 2255, Petitioner must first obtain authorization from the Tenth Circuit Court of Appeals. As stated in § 2255, "a second or successive motion must be certified as provided in § 2244 by a panel of the appropriate court of appeals." Section 2244(b)(3)(A) commands that "[b]efore a second or successive application permitted by this section 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."
The government has moved to transfer Petitioner's second or successive § 2255 motion to the Tenth Circuit Court of Appeals. In Coleman v. United States of America, 106 F.3d 339 (10th Cir. 1997), the Tenth Circuit held that when a second or successive motion is filed pursuant to § 2254 or § 2255 in a district court without the proper authorization from the Court of Appeals, the district court, in the interest of justice, should transfer the case to the Tenth Circuit to grant or deny the proper certification.
Petitioner has not presented the proper certification from the Tenth Circuit authorizing the Court to entertain his current motion. Therefore, the Court GRANTS the government's motion to transfer and hereby TRANSFERS Petitioner's motion to the Tenth Circuit for proper authorization.