SHELLY D. DICK, District Judge.
This matter is before the Court on the Motion to Vacate under 28 U.S.C. 2255 as to Johnson/Welch Act
On May 29, 2007, the Defendant pled guilty to distribution of five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). On October 8, 2008, the Defendant was sentenced to 210 months of imprisonment.
On March 3, 2010, Defendant filed a Motion to Vacate Sentence under 28 U.S.C. § 2255,
Defendant has filed the current motion, his third motion to vacate pursuant to Section 2255, and has again failed to get authorization for this filing from the Fifth Circuit. Therefore, this Court lacks jurisdiction over Defendant's motion.
In order to obtain permission from the appellate court, the Defendant must make a prima facie showing that his proposed Section 2255 motion relies upon either (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."
Before the motion can be considered on the merits by this Court, the Defendant must obtain authorization to file this successive petition from the United States Court of Appeals for the Fifth Circuit by making a prima facie showing of the above listed requirements to that appellate court as required by 28 U.S.C. § 2244(b)(3)(A). Until such time as petitioner obtains said authorization, this Court may not proceed.
Accordingly, the Defendant's Motion to Vacate under 28 U.S.C. 2255 as to Johnson/Welch Act