Harvey v. Emerson ( 2012 )

FILED
UNITED STATES DISTRICT COURT 2 4
FoR THE DISTR!CT oF coLUMBIA clark u s owner a a k
' ' ~ an rupt¢;y
ms far me District of columbia
Ferdell Fabian Harvey, )
Petitioner, §
v. § Civil Action No.
Welmer Emerson, §
Respondent. §
MEMORANDUM OPlNION
This matter is before the Court on the petition for relief under 28 U.S.C. § 225 5,
accompanied by petitioner’s application to proceed in forma pauperis. The Court will grant the
application to proceed in forma pauperis and will dismiss the case for lack of jurisdiction
Petitioner is a resident of Hope Village, Inc., in the District of Columbia. He claims that
he was wrongly convicted in the United States District Court for the District of New Jersey. The
sentencing court previously denied his motion to vacate under 28 U.S.C. § 2255 and his motion
for relief under Federal Rule of Civil Procedure 60(b). See Pet. at 2-3. Petitioner essentially has
submitted a successive petition challenging his conviction.
"No circuit or district judge shall be required to entertain [a habeas petition] to inquire
into [a federal offender’s] detention if it appears that the legality of such detention has been
[previously determined], except as provided in section 2255." 28 U.S.C. § 2244(a). Pursuant to
§ 2255(h), "[a] second or successive motion must be certified as provided in section 2244,"
which states that "[b]ef0re a second or successive [habeas] application . . . is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Because petitioner was
sentenced in the District of New Jersey, he must seek certification from the United States Court
of Appeals for the Third Circuit to file a successive habeas petition in the sentencing court. See
In re M00re, 196 F.3d 252, 254 (D.C. Cir. l999) ("§ 2255 mandates" such certification); id. ("A
federal prisoner seeking relief from his sentence must file a petition . . . in ‘the court which
sentenced him."’) (quoting 28 U.S.C. § 225 5). A separate order of dismissal accompanies this
Memorandum Opinion.
ZZl/`` United §tates District Judge
Date: February , 2012