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Gant v. United States

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS Urbana Division


June 14, 2007

ALFRED J. GANT, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On May 10, 2007, Petitioner, Alfred J. Gant, file a Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1). On June 11, 2007, the Government filed its Response to Petitioner's Second Motion under 28 U.S.C. § 2255 (#3). The Government argued that Petitioner's Motion must be dismissed because it is his second Motion under § 2255 and he has not, as required, obtained approval from the court of appeals to file the motion or met the requirements of § 2255 and § 2244.

This court concludes that the Government has very adequately set out the procedural history in this case, including the fact that Petitioner previously filed a Motion under § 2255 in Case No. 05-CV-2119. This court agrees with the Government that this court must dismiss Petitioner's Motion. The Seventh Circuit has made clear that a "district court must dismiss a second or successive petition . . . unless the court of appeals has given approval for its filing. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (emphasis in original); see also Morrison v. United States, 2006 WL 156823, at *2 (C.D. Ill. 2006). "Unless and until the movant seeks and obtains permission from the court of appeals to file such a motion, the district court is without jurisdiction to entertain his request." United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007), cert. denied, 2007 WL 1243239 (U.S. 2007). Because Petitioner has not sought or obtained authorization from the court of appeals, this court has "no option other than to dismiss his motion." See Carraway, 478 F.3d at 849.

IT IS THEREFORE ORDERED THAT:

(1) Petitioner's Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1) is dismissed for lack of jurisdiction.

(2) This case is terminated.

20070614

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