Opinion
Case No. 1:05-CV-51 DB, Criminal Case No. 1:04-CR-1 DB.
July 13, 2005
ORDER
Before the Court is Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. This is Petitioner's second attempt to bring a § 2255 motion before the Court. Petitioner filed his original motion on April 4, 2005. On July 11 th, 2005, the Court denied his motion.
Petitioner now brings this present motion claiming that the Court should correct his sentence because it is unlawful under the Federal Sentencing Guidelines. Additionally, Petitioner claims that his counsel rendered ineffective assistance.
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."
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 TRANSFERS Petitioner's motion to the Tenth Circuit for proper authorization.