McCutcheon v. United States of America, No. 2:2014cv00345 - Document 9 (M.D. Fla. 2014)

Court Description: OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) without prejudice. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:04-cr-66-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 9/9/2014. (RKR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION UNITED STATES OF AMERICA vs. Case No. 2:14-cv-345-FtM-29DNF Case No. 2:04-cr-66-FTM-29DNF EUGENE JERMAINE MCCUTCHEON OPINION AND ORDER This matter comes before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1) and a Memorandum in Support (Cv. Doc. #2), both filed on June 23, 2014. The United States Response in Opposition (Cv. Doc. #8) was filed on August 12, 2014. Petitioner Eugene Jermaine McCutcheon previously filed a Petition under 28 U.S.C. § 2255 in Case No. 2:05-cv-526-FtM-29DNF. The district court denied Ground I and dismissed Ground II (2:05cv-526, Doc. #25), and the Eleventh Circuit denied a certificate of appealability (2:05-cv-526, Doc. #34) on October 8, 2008. A prisoner may not file a second or successive motion under § 2255 without the permission of the appropriate court of appeals. U.S.C. § 2255(h). 28 Absent such permission, a district judge lacks jurisdiction to address the motion and must dismiss it. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Petitioner has not obtained a certification from the Eleventh Circuit Court of Appeals which allows the filing of a second or successive petition, and therefore the district court lacks subject matter jurisdiction. Accordingly, it is hereby ORDERED: 1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1) is DISMISSED without prejudice. 2. The Clerk of the Court shall enter judgment accordingly and close the civil file. The Clerk is further directed to place a copy of the civil Judgment in the criminal file. IT IS FURTHER ORDERED: A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN FORMA PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court s denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right. showing, petitioner 28 U.S.C. § 2253(c)(2). must demonstrate that To make such a reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong, Tennard v. Dretke, 542 U.S. 274, 282 - 2 - (2004), or that the issues presented were adequate to deserve encouragement to proceed further, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations and internal quotation marks omitted). Petitioner has not made the requisite showing in these circumstances. Finally, because petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis as to the successive petition. DONE and ORDERED at Fort Myers, Florida, this September, 2014. Copies: Counsel of Record Eugene Jermaine McCutcheon - 3 - 9th day of

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