United States District Court, D. Nebraska
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on its own motion. It has come to
the court's attention that the defendant's pro se
pleading was improperly docketed as a "motion to vacate
under 28 U.S.C. § 2255 (Johnson), " when it is
actually a motion for leave to file a second or successive
motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255 with a caption indicating "United
States Court of Appeals." See Filing No.
186. In the pleading, Cook asserts, inter alia,
that his sentence is unconstitutional under Johnson v.
United States, 135 S.Ct. 2551 (2015).
record indicates that the defendant filed an earlier §
2255 motion. See Filing No. 153 & Filing No.
158, Motions; Filing No. 159, Memorandum and Order; Filing
No. 160, Judgment. To file a second or successive Section
2255 motion, the movant is required to first file an
application with the appropriate court of appeals for an
order authorizing the district court to consider the motion.
28 U.S.C. § 2244(b)(3)(A). Absent advance authorization
from the U.S. Court of Appeals, a person may not file a
second- or-successive habeas petition in district court.
See 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section 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.”). If a
person files a successive petition in district court without
Circuit authorization, the district court will lack
subject-matter jurisdiction. See Magwood v.
Patterson, 561 U.S. 320, 330-31, 130 S.Ct. 2788, 2796
(2010); Hill v. Morrison, 349 F.3d 1089, 1092 (8th
Cir. 2003) (explaining lack of jurisdiction).
appears that the movant's pleading was mistakenly filed
in this court rather than the Eighth Circuit Court of
Appeals. Under 28 U.S.C. § 1631,
Whenever a civil action is filed in a court as defined in
section 610 of this title or an appeal, including a petition
for review of administrative action, is noticed for or filed
with such a court and that court finds that there is a want
of jurisdiction, the court shall, if it is in the interest of
justice, transfer such action or appeal to any other such
court in which the action or appeal could have been brought
at the time it was filed or noticed, and the action or appeal
shall proceed as if it had been filed in or noticed for the
court to which it is transferred on the date upon which it
was actually filed in or noticed for the court from which it
28 U.S.C. § 1631; see, e.g., United States
v. Cook County, Illinois, 170 F.3d 1084, 1089 (Fed. Cir.
1999) (“1631 was designed to remedy the situation in
which a litigant has mistakenly filed an action in a court
that lacks jurisdiction.”). Accordingly, the court will
deny the motion without prejudice and will transmit the
pleading to the United States Court of Appeals for the Eighth
Circuit for filing.
to District of Nebraska procedures, General Order No. 2015-03
In re: Petitions Arising under Johnson v. United
States was issued in this case and counsel was
appointed. See Filing No. 187, General
Order, Filing No. 190, Order appointing counsel. Those orders
will be vacated as applied to the defendant, Mr. Cook.
Accordingly, IT IS ORDERED that:
Movant’s motion (Filing No. 186) is denied without
Clerk of Court is directed to transmit the pleading (Filing
No. 186) to the United States Court of Appeals for the Eighth
Circuit for filing.
General Order No. 2015-03 (Filing No. 187), and the
court’s order dated January 7, 2016 (Filing No. 190)
are hereby vacated as applied to the Movant only.
 Johnson was recently given
retroactive effect in cases on collateral review by the
Supreme Court. Welch v. United States, 136 S.Ct.
1257, 1265 (2016). A petition seeking relief under
section 2255(h)(2) must commence within one year of the date
a new rule is recognized by the Supreme Court of the United
States. 28 U.S.C. § 2255(f). Further, the one-year
period prescribed by 2255(f)(3) runs from the date of the
Supreme Court's ruling initially recognizing the right
asserted, and not from the date the newly recognized right
was found to be retroactive. Dodd v. United States,
545 U.S. 353, 357-59 (2005). Johnson was decided by
the Supreme Court on June 26, 2015.
 The Federal Public Defender was
originally appointed, but moved to withdraw as counsel.
See Filing No. 188, Motion to withdraw; ...