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Pearson v. United States

United States District Court, District of Columbia

October 3, 2016

PRESTON PEARSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         Upon review of Pearson's pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, see Dkt. 1, and the United States' response, see Dkt. 12, the Court has determined that the petition, properly construed, falls under 28 U.S.C. § 2254. See Dkt. 5 at 3. Before the Court construes the petition as arising under § 2254, however, it must inform Pearson of some of the consequences that may result from this characterization and give him an opportunity to withdraw or to amend his motion. Pending Pearson's decision, which must be communicated to the Court on or before November 3, 2016, the Court will hold further proceedings in abeyance.

         The Court advises Pearson of the following restrictions on claims brought under § 2254:

         First, all claims brought under 28 U.S.C. § 2254 must be brought in a single motion.

         Before a second or successive § 2254 motion is filed in district court, the U.S. Court of Appeals for the District of Columbia Circuit must authorize the district court to consider the claim. See 28 U.S.C. § 2244(b)(3). More specifically, petitioner is advised that:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3) (A) Before 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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 ...

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