Opinion
Case No. 2:04-CV-656, Criminal Case No.: 2:99-CR-615.
March 15, 2005
ORDER
Before the Court is Petitioner's motion pursuant to 28 U.S.C. § 2255. This is Petitioner's third attempt under section 2255 to convince the Court that he was improperly sentenced. Petitioner originally filed a motion to vacate, set aside, or correct his sentence on August 14, 2003. That motion was denied on May 14, 2004. On June 24, 2004, Petitioner filed a motion to reconsider that denial, which itself was denied on August 10, 2004. Between the filing of his motion to reconsider and the Court's decision on August 10th, Petitioner filed this second motion to vacate under section 2255.
To file a second petition under 28 U.S.C. § 2255, Petitioner must first obtain certification from the Tenth Circuit Court of Appeals. As stated in 28 U.S.C. § 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."
Petitioner has not verified to the Court that he has received the proper certification from the Tenth Circuit. Therefore this Court is unauthorized to rule on Petitioner's current motion as it is beyond the Court's jurisdiction.
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. Therefore, the Court hereby TRANSFERS Petitioner's motion to the Tenth Circuit for proper authorization.