Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-00237
IN RE: SYLVESTER TOLLIVER,
Movant.
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.
BY THE COURT:
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, 116 S. Ct. 501 (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
2

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.
3