BURKE
v.
UNITED STATES
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The court held that it lacks jurisdiction to consider a second or successive motion to vacate sentence under 28 U.S.C. § 2255 when the movant has not obtained prior authorization from the Eleventh Circuit Court of Appeals.
Movant Earl A. Burke filed a second or successive motion to vacate his sentence under 28 U.S.C. § 2255, arguing his sentence was erroneously enhanced …
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BEFORE THE COURT is Mr. Burke’s motion under 28 U.S.C. § 2255 to vacate his sentence (cv Doc. 1) in which he contends that, given United States v. Jackson, 36 F. 4th 1294 (11th Cir. 2022), his sentence was erroneously enhanced under the Armed Career Criminal Act (ACCA).1 The § 2255 motion is a second or successive motion to vacate filed without authorization from the Eleventh Circuit Court of Appeals.2 See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application
2Mr. Burke’s initial § 2255 motion was denied on March 7, 2017. See Case No. 8:16-cv-2121- JDW-TBM (M.D.Fla.) (Doc. 22).
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.”). Consequently, this Court lacks jurisdiction, and the motion must be dismissed. See Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003); Mitchell v. United States, 2016 U.S. App. LEXIS 10401, at *5-6 (11th Cir. June 9, 2016) (unpublished) (“[B]ecause Mitchell did not obtain our authorization before filing his successive § 2255 motion, the district court properly concluded that it lacked jurisdiction over the motion and dismissed it.”). Accordingly, the § 2255 motion to vacate (cv Doc. 1) is DISMISSED without prejudice. The Clerk of the Court must send Mr. Burke the Eleventh Circuit’s application form for leave to file a second or successive § 2255 motion under 28 U.S.C. § 2244(b) and close this case. ORDERED in Tampa, Florida, on September 14, 2022.
WILLIAM F. ca
UNITED STATES DISTRICT JUDGE
SA: sfc Copies to: Earl A. Burke, pro se Counsel of Record
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- J.B. Farris v. United States, 333 F.3d 1211 (11th Cir. 2003)
- United States v. Jackson, 36 F.4th 1294 (11th Cir. 2022)