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United States v. Nugent

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 25, 2007

UNITED STATES OF AMERICA,
v.
ANTHONY NUGENT, DEFENDANT.

The opinion of the court was delivered by: Thomas F. Hogan, Chief Judge United States District Court

MEMORANDUM OPINION

The Court has allowed to be filed defendant's motion for leave to file an untimely motion for relief under 28 U.S.C. § 2255 or for leave to file a petition for a writ of habeas corpus under 28 U.S.C. § 2241. For the following reasons, the motion will be denied.

"No circuit or district judge shall be required to entertain [a habeas petition] to inquire into [a federal offender's] detention if it appears that the legality of such detention has been [previously determined], except as provided in section 2255." 28 U.S.C. § 2244(a). The criminal docket reflects plaintiff's unsuccessful attempts for relief under § 2255 and to file a successive motion. See Order (D.C. Cir., Jan. 20, 2004) [Dkt. No. 1986] (denying defendant's motion to file a successive motion); Order (D.D.C., Nov. 14, 2005) (Hogan, C.J.) [Dkt. No. 2036] (denying defendant's successive § 2255 motion for lack of jurisdiction). Thus, pursuant to 28 U.S.C. § 2244(b), defendant must seek permission from the United States Court of Appeals for the District of Columbia Circuit to file a successive motion. See 28 U.S.C. § 2255("A . . . successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . . ."); In re Moore, 196 F.3d 252, 254 (D.C. Cir. 1999) ("§ 2255 mandates" such certification); Foster v. United States, 290 F. Supp. 2d 5, 10 (D.D.C. 2003) (citing cases treating Rule 60(b) motions challenging judgments of conviction as successive habeas petitions).

As defendant was previously advised, "[b]efore a second or successive application . . . 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." 28 U.S.C. § 2244(b)(3)(A). The District of Columbia Circuit has not certified defendant's motion to be filed. This Court therefore lacks jurisdiction to entertain the motion. See Moore v. Department of Justice 1998 WL 545421, *1 (D.C. Cir., July 17, 1998) ("The district court did not have jurisdiction to entertain appellant' s successive § 2254 petition since appellant never obtained certification from the court of appeals to file his successive petition.").*fn1

A separate Order accompanies this Memorandum Opinion.


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