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United States v. Elliott

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 28, 2009

UNITED STATES OF AMERICA
v.
TEXROY JOSEPH ELLIOTT

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 28th day of January, 2009, upon consideration of defendant's motion (Doc. 90) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and it appearing that upon receipt of a § 2255 motion the court "must promptly examine it" and must dismiss the motion "[i]f it plainly appears from the motion . . . that the moving party is not entitled to relief," R. GOVERNING § 2255 CASES R. 4(b), and it further appearing that defendant previously filed a § 2255 motion (Doc. 74),*fn1 that the court disposed of defendant's motion on February 28, 2008, (see Doc. 89), and that a defendant filing a second or successive § 2255 motion must "move in the appropriate court of appeals for an order authorizing the district court to consider the application," 28 U.S.C. § 2244(b)(3)(A), see also id. § 2255(h), and the court concluding that "[w]hen a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals," Robinson v. Johnson, 313 F.3d 128, 140 (3d Cir. 2002) (applying § 2244 to a successive petition filed under 28 U.S.C. § 2254); see also 28 U.S.C. § 2255(h) (stating that § 2244 controls successive motions under § 2255), and that defendant has not petitioned the appropriate court of appeals for leave to file a second or successive § 2255 motion,*fn2 it hereby ORDERED that:

1. Defendant's motion (Doc. 90) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DISMISSED without prejudice to his right to petition the United States Court of Appeals for the Third Circuit for permission to file a second or successive motion under § 2255. See R. GOVERNING § 2255 CASES R. 4(b).

2. The Clerk of Court is instructed notify defendant of this disposition. See id.


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