United States v. Echerivel

Full title: UNITED STATES OF AMERICA, Plaintiff, v. OLGA ECHERIVEL, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Date published: Jul 24, 2012

8:08CR409 (D. Neb. Jul. 24, 2012)

Opinion

8:08CR409

07-24-2012

UNITED STATES OF AMERICA, Plaintiff, v. OLGA ECHERIVEL, Defendant.

LYLE E. STROM, Senior

MEMORANDUM OPINION

This matter is before the Court on the defendant's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Filing No. 131). For the following reasons, the motion will be denied.

DISCUSSION

This is the second motion the defendant has filed pursuant to 28 U.S.C. § 2255. Her first § 2255 motion, filed on July 11, 2011 (Filing No. 124), was denied by the Court on August 29, 2011 (see Filing Nos. 127 and 128).

The defendant's current § 2255 motion constitutes a "second or successive motion" within the meaning of 28 U.S.C. § 2255. 28 U.S.C. § 2255; see United States v. Nicholson, 231 F.3d 445, 454 (8th Cir. 2000); see also United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998); and Vancleave v. Norris, 150 F.3d 926, 927-29 (8th Cir. 1998). A petitioner seeking to file a second or successive § 2255 motion challenging their conviction or sentence must first obtain circuit court certification. 28 U.S.C. § 2255; Allen, 157 F.3d at 664; U.S. v. Arnold, 2001 WL 435648 at 1 (D.Minn. 2001). Because the defendant has not received approval from the Eighth Circuit to file a second or successive § 2255 motion, the Court lacks jurisdiction over her claims. United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Allen, at 664; United States v. Alvarez-Ramirez, 128 F.Supp.2d 1265, 1267 (C.D.Cal. 2001). Lacking jurisdiction, defendant's motion will be denied without prejudice. Accordingly, a separate order will be entered in accordance with this memorandum opinion.

BY THE COURT:

________________________

LYLE E. STROM, Senior Judge

United States District Court