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United States v. Hollowell

United States District Court, N.D. Mississippi, Oxford Division

February 20, 2018

UNITED STATES OF AMERICA
v.
PATRICK HOLLOWELL

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court for consideration on Petitioner Patrick Hollowell's Second Motion to Vacate Judgment under 28 U.S.C. § 2255 [133]. The Government has filed a response to the motion. The court has considered the motion and response as well as the relevant case law and evidence, and is now prepared to rule.

         PROCEDURAL BACKGROUND

         On September 22, 2011, Hollowell pled guilty to and was convicted of kidnapping, and brandishing a firearm during and in relation to a “crime of violence.” The Court sentenced Hollowell to a 324-month term of incarceration. Hollowell appealed. On appeal, his conviction and sentence were affirmed by the Fifth Circuit in November 2012. Hollowell then filed for habeas relief which this Court denied. This denial was also appealed and the Fifth Circuit denied a certificate of appealability.

         Hollowell then filed his successive petition on June 24, 2016. The Fifth Circuit denied authorization to pursue this successive petition. In re: Patrick Hollowell, 16-60429 (Sept. 29, 2016).

         STANDARDS AND APPLICABLE STATUTES

         A prisoner may not file a “second or successive” application for post-conviction relief in federal district court unless the prisoner first obtains certification from a Fifth Circuit panel that his motion satisfies one of two enumerated grounds under 28 U.S.C. § 2255(h). 28 U.S.C.A. § 2255(h)(2) provides:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-
(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.A. § 2244(b)(3)(A-E) provides:
(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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of ...

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