Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:00-cr-00261-WDM

Document 132

Filed 01/29/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO District Judge Walker D. Miller

Civil Action No. 07-cv-00151-WDM (Criminal Action No. 00-CR-00261-WDM) UNITED STATES OF AMERICA, v. DAVID WARREN VEREN, Movant.

ORDER TO TRANSFER 28 U.S.C. § 2255 MOTION TO COURT OF APPEALS

On January 18, 2007, Movant David Warren Veren filed a pro se Motion pursuant to 28 U.S.C. § 2255. I must construe the Motion liberally because Mr. Veren is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not act as a pro se litigant' advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, I will s direct that the Motion be transferred to the United States Court of Appeals for the Tenth Circuit (Tenth Circuit). Mr. Veren is challenging the validity of his sentence. I find, however, that Movant previously sought relief pursuant to § 2255 in this criminal action and was denied relief. See United States v. Veren, No. 04-cv-01405-DBS (Criminal Case No. 00-cr-00261-WDM) (D. Colo. July 30, 2004). Therefore, the instant Motion is a second or successive § 2255 motion.

Case 1:00-cr-00261-WDM

Document 132

Filed 01/29/2007

Page 2 of 2

Pursuant to 28 U.S.C. § 2244(b)(3) and 28 U.S.C. § 2255, Mr. Veren must apply to the Tenth Circuit for an order authorizing this Court to consider a second or successive § 2255 motion. Mr. Veren has not submitted the necessary authorization from the Tenth Circuit allowing me to consider a second or successive § 2255 motion. A second or successive § 2255 motion filed in a district court without the required authorization should be transferred to the court of appeals pursuant to 28 U.S.C. § 1631. See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam). Accordingly, it is ORDERED that the Clerk of this Court is directed to transfer the 28 U.S.C. § 2255 Motion, filed January 18, 2007, to the United States Court of Appeals for the Tenth Circuit. DATED at Denver, Colorado, this 29th day of January, 2007. BY THE COURT: s/ Walker D. Miller

WALKER D. MILLER United States District Judge

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