97 F3d 89 In Re Sylvester Tolliver

97 F.3d 89

In re Sylvester TOLLIVER, Movant.

No. 96-00237.

United States Court of Appeals,
Fifth Circuit.

Sept. 30, 1996.

Sylvester Tolliver, Lewisburg, PA, pro se.

Motion for an Order Authorizing the United States District Court for the Eastern District of Louisiana to Consider a Successive 28 U.S.C. § 2255 Motion.

Before JONES, DeMOSS and PARKER, Circuit Judges.


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Sylvester Tolliver, federal prisoner # 24806-013, has moved this Court for an order authorizing him to file a successive 28 U.S.C. § 2255 motion in the district court. Tolliver asserts that on May 20, 1996, he filed a motion to dismiss his 1993 jury conviction for using or carrying a firearm in relation to a drug crime in violation of 18 U.S.C. § 924(c) in light of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Over Tolliver's objections, the district court construed Tolliver's motion as a § 2255 motion and granted the relief sought. Tolliver asserts before us that he was purchasing a copy of his trial transcript required to complete a § 2255 motion when he filed his motion to dismiss his firearm conviction. Tolliver states that he has several constitutional and other issues to raise in a § 2255 motion and that it was never his intention that his earlier motion be construed pursuant to § 2255.


On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 1220-21 (1996), which amended § 2255. Under the amendment, a prisoner seeking to file a second or successive § 2255 motion must obtain authorization to do so from this Court. 28 U.S.C. § 2244(b)(3) and § 2255. This Court may authorize the filing of a successive § 2255 motion only if it determines that the movant has made a prima facie showing that:


(1) newly discovered evidence that, if proven and viewed in 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 (as amended by AEDPA).


It is not clear from the motion now before this Court whether Tolliver's May 20, 1996 motion to dismiss his conviction under Bailey was or was not labeled as a § 2255 motion. The district court construed Tolliver's motion as a § 2255 motion, and granted the motion and ordered the relief sought. While Tolliver objected to the district court's construing it as a § 2255 motion, there is nothing else it could be. Consequently, Tolliver has exercised his first § 2255 motion and must now receive a certificate from this Court as to any second or successive § 2255 motion.


Tolliver's motion for authorization is not sufficient for us to certify that his second § 2255 motion would be based on newly discovered evidence or on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. See 28 U.S.C. § 2255 above. Tolliver does not state the issues or arguments he seeks to raise in his second § 2255 motion. Therefore, it is ordered that Tolliver's motion for authorization to file a successive § 2255 motion is DENIED.