Opinion
CASE NO. 2:05-CR-160 CRIM. NO. 2:97-CR-99(4)
10-12-2011
STEPHEN WASHINGTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE GRAHAM
OPINION AND ORDER
On February 22, 2005, Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255. Doc. No. 725. That motion was dismissed on May 15, 2006. Opinion and Order, Doc. No. 761, and this Court as well as the United States Court of Appeals for the Sixth Circuit declined to issue a certificate of appealability. Opinion and Order, Doc. No. 780; Order, Doc. No. 812.
On May 20, 2010, Petitioner filed a motion to amend his motion to vacate, set aside or correct sentence. Motion to Amend, Doc. No. 914. In that motion, Petitioner now seeks to amend his original motion to include a claim that his sentence violates United States v. Almany, 598 F.3d 238 (6th Cir. 2010), vacated by United States v. Almany, 131 S.Ct. 637 (2010). Petitioner also asserts that he was denied the effective assistance of counsel and complains that the Magistrate Judge improperly construed the claims asserted in his original motion. Memorandum in Support, Doc. No. 916. Petitioner also seeks an evidentiary hearing on his claims.
The Motion to Amend is without merit Almany, 598 F.3d at 238, the case upon which Petitioner relies in this motion, has been abrogated by the United States Supreme Court. Abbott v. United States, 131 S.Ct. at 23 (holding that criminal defendants are subject to consecutive sentences for possessing a firearm in furtherance of a drug trafficking crime, even if they are subject to a greater mandatory minimum term of incarceration on a different conviction, unless another statute imposes an even greater mandatory minimum term).
Moreover, in light of the fact that Petitioner's original motion to vacate has been resolved, this Court is without jurisdiction to consider a successive motion to vacate, set aside or correct sentence absent authorization by the United States Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner's Motion to Amend, Doc. No. 914, is therefore DENIED.
Petitioner's motion for a copy of the docket sheet, Doc. No. 936, is GRANTED. The Clerk is DIRECTED to mail a copy of the docket sheet to Petitioner and to indicate on the docket that he has done so.
Norah McCann King
United States Magistrate Judge