United Statesv.Whitlow

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKAJun 10, 2019
4:14-CR-3015 (D. Neb. Jun. 10, 2019)

4:14-CR-3015

06-10-2019

UNITED STATES OF AMERICA, Plaintiff, v. THOMAS WHITLOW, Defendant.


ORDER

This matter is before the Court on the defendant's motion to vacate under 28 U.S.C. § 2255 (filing 387). That motion will be denied.

This is not the defendant's first § 2255 motion. He filed such a motion on June 27, 2016 (filing 334) which the Court denied on the merits on October 18, 2016. Filing 340. The Court declined to issue a certificate of appealability, filing 340 at 6, and the Eighth Circuit denied his certificate of appealability as well, filing 354. Then, he filed a motion that he styled as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) (filing 359). But, the Court concluded that it could only be construed as a second or successive § 2255 motion, and denied it because the defendant had not obtained authorization for a successive § 2255 motion from the Court of Appeals. Filing 360. The Eighth Circuit affirmed that decision as well. Filing 370.

As a result, the defendant's latest-filed motion is obviously a "second or successive" § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Williams v. Kelley, 854 F.3d 1002, 1009 (8th Cir. 2017); United States v. Lee, 792 F.3d 1021, 1023-25 (8th Cir. 2015); United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005). Such a motion requires authorization by the Court of Appeals. See § 2255(h); 28 U.S.C. § 2244(b)(3). The defendant has not obtained such authorization, so his motion will be denied. See United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002); see also United States v. Carranza, 467 F. App'x 543 (8th Cir. 2012).

IT IS ORDERED:

1. The defendant's § 2255 motion (filing 387) is denied.

2. The Court will not issue a certificate of appealability in this matter.

3. A separate judgment will be entered.

4. The Clerk is directed to mail a copy of this Memorandum and Order to the defendant at his last known address.


Dated this 10th day of June, 2019.

BY THE COURT:

/s/_________


John M. Gerrard


Chief United States District Judge