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Wallace v. United States

December 1, 2008

RICKEY BRANDON WALLACE, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA , RESPONDENT/PLAINTIFF.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence

BACKGROUND

Pursuant to plea agreement and stipulation of fact, Petitioner pleaded guilty to conspiracy to distribute marijuana; he was sentenced to 240 months imprisonment, five years supervised release, a fine of $4500, and a special assessment of $50. On appeal, he challenged the court's denial of his motion to withdraw his guilty plea; he also challenged the length of his sentence. United States v. Wallace, 276 F.3d 360 (7th Cir.), cert. denied, 122 S.Ct. 2592 (2002). Each of these arguments was rejected; his conviction and sentence were affirmed. Id. at 370.

Petitioner next challenged his sentence in a motion under 28 U.S.C. § 2255. In that motion, he once again challenged the length of his sentence, relying on the principles set forth in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). However, as explained by this Court, that argument had already been rejected on direct appeal; thus, the motion was denied. Wallace v. United States, Case No. 03-cv-251-WDS (S.D. Ill., filed April 22, 2003). Now before the Court is a new § 2255 motion. For the numerous reasons set forth below, the motion is denied.

SECOND/SUCCESSIVE PETITION

Section 2255 provides that:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Thus, only the Seventh Circuit Court of Appeals may authorize the commencement of a second or successive petition.

Unlike the former standard, under which a second petition could be pursued unless the government established that it was an abuse of the writ, see McCleskey v. Zant, 499 U.S. 467, 477, 494-5, 111 S.Ct. 1454, 1461, 1470-71, 113 L.Ed.2d 517 (1991), the new prior-approval device is self-executing. From the district court's perspective, it is the allocation of subject-matter jurisdiction to the court of appeals. A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing. Even an explicit consent by the government to beginning the case in the district court would be ineffectual; the power to authorize its commencement does not reside in either the district court or the executive branch of government. A second or successive collateral attack may no more begin in the district court than a criminal prosecution may commence in the court of appeals.

Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996); Roldan v. United States, 96 F.3d 1013, 1014 (7th Cir. 1996). Because there is nothing in the record to establish that Petitioner has sought and obtained a certification from the Seventh Circuit Court of Appeals to pursue this second motion ...


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