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Freeman v. United States

United States District Court, Seventh Circuit

October 10, 2013

LEMOYNE FREEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER & OPINION

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), and Respondent's Motion to Dismiss Petitioner's Motion (Doc. 3). Petitioner has filed a Response to the Motion to Dismiss (Doc. 4). For the reasons stated below, Respondent's Motion is granted, and Petitioner's § 2255 Motion is dismissed.

In 2000, Petitioner was convicted of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846, upon a plea of guilty. (Judgment, United States v. Freeman, No. 99-cr-40089 (C.D. Ill. 2000), Doc. 29). He was sentenced to a term of 262 months' imprisonment. ( Id. ). This sentence was later reduced to 210 months pursuant to a retroactive change in his sentencing guideline range. (99-cr-40089, Doc. 50). On October 4, 2002, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 in this Court. ( Freeman v. United States, No. 02-cv-4082 (C.D. Ill. 2002), Doc. 1). This Motion was denied on January 27, 2003, because he had procedurally defaulted part of his claim and the rest of his claim failed on the merits. (02-cv-4082, Doc. 6).

In the Motion to Dismiss, Respondent first argues that because the present § 2255 Motion is Petitioner's second § 2255 Motion, this Court does not have jurisdiction to hear Petitioner's claim without authorization from the Court of Appeals. Petitioner does not respond to this argument, instead arguing only the merits of his claim in his Response.

As noted above, Petitioner has indeed already filed one § 2255 Motion before this Court, which was denied over ten years ago. (02-cv-4082, Doc. 6). Under 28 U.S.C. § 2255(h), a second or successive motion must be certified by the appropriate court of appeals. Petitioner has made no showing that he has obtained the requisite certification. Accordingly, the Court does not have jurisdiction to hear Petitioner's Motion. If he wishes to bring a second § 2255 Motion, he must first seek authorization from the United States Court of Appeals for the Seventh Circuit.

IT IS THEREFORE ORDERED that Respondent's Motion to Dismiss (Doc. 3) is GRANTED and Petitioner's second Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DISMISSED for lack of subject-matter jurisdiction.


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