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Moses Clary v. United States of America

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


May 15, 2013

MOSES CLARY PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.

The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

Memorandum Order

This matter comes before the Court by way of Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence by Person in Federal Custody and the Government's Motion to Dismiss Petitioner's Motion. The Court has reviewed the instant Motions and notes that it lacks jurisdiction over Petitioner's Motion for the reasons set forth in the Government's Motion to Dismiss. Specifically, under the Antiterrorism and Effective Death Penalty Act, a Petitioner seeking to file a second or successive § 2255 motion must obtain from the United States Court of Appeals a certification that the second or successive motion contains newly discovered evidence or a new rule of constitutional law. 28 U.S.C. § 2255(h).*fn1 Here, Petitioner's Motion constitutes a second or successive § 2255 petition; however, the United States Court of Appeals for the Third Circuit denied Petitioner the requisite certification to bring such an action before this Court, which is required for this Court to exercise jurisdiction over Petitioner's Motion.*fn2 Accordingly, because this Court lacks jurisdiction over this matter and cannot reach the substance of Petitioner's Motion,

IT IS on this 15th Day of May, 2013 hereby ORDERED that Petitioner's Motion is dismissed.

Hon. Joseph H. Rodriguez UNITED STATES DISTRICT JUDGE


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