Hardy v. United States

8:06-cv-00599 | M.D. Fla. | Jul 10, 2008

Case 8:06-cv-00599-JSM-TGW Document 12 Filed 07/10/08 Page 1 of 2 PageID 68 Case 8:04-cr-00167-JSM-TGW Document 116 Filed 07/10/2008 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO: 8:04-CR-167-T-30TGW MICHAEL EUGENE HARDY ____________________________________/

ORDER THIS CAUSE comes before the Court on Defendant's Motion Seeking Relief from Final Judgment (Dkt. #115), which this Court is construing as a second motion for relief under 28 U.S.C. §2255. Judgment was entered against Defendant on April 1, 2005. Defendant filed a Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Dkt. #107) on April 7, 2006. An Order (Dkt. #110) denying said Motion was entered on July 12, 2006. Defendant did not file an appeal with the Eleventh Circuit Court of Appeals regarding the denial.

Pursuant to 28 U.S.C. § § 2255 and 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, federal prisoners who want to file a second or successive motion to vacate, set aside, or correct a sentence must move the court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals, § 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it determines that the Case 8:06-cv-00599-JSM-TGW Document 12 Filed 07/10/08 Page 2 of 2 PageID 69 Case 8:04-cr-00167-JSM-TGW Document 116 Filed 07/10/2008 Page 2 of 2 motion contains claims which rely on either: (1) newly discovered evidence that, if proven and viewed in the 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. 28 U.S.C. § 2255. See In re Blackshire, 98 F.3d 1293" date_filed="1996-10-16" court="11th Cir." case_name="In Re Charles Blackshire">98 F.3d 1293 (11th Cir. 1996).

Defendant has not fulfilled the requirements of the statutes as set out above. It is therefore ORDERED AND ADJUDGED that Defendant's Motion Seeking

Relief from Final Judgment (Dkt. #115), which this Court is construing as a second motion for relief under 28 U.S.C. §2255, is DISMISSED.

DONE and ORDERED in Tampa, Florida on July 10, 2008. COPIES FURNISHED TO : Counsel/Parties of Record F:\Docs\2004\04-cr-167.successive 2255.wpd

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