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UNITED STATES DISTRICT coURT SEP - 1 2009
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§
UNITED STATES OF AMERICA §
§ Crim. No. 93-367 (RCL)
v- §
§ Civil No. 07-2253 (RCL)
RONALD J. TOMS, §
Defendant. §
§
MEMORANDUM

Before the Court are Defendant Ronald J. Toms’ docketed motion to vacate
sentence under 28 U.S.C. § 2255 35 [258] and his docketed motion to correct
sentence under Federal Rule of Criminal Procedure 35 [259]. For the following
reasons Mr. Toms’ motions are stricken from the record without prejudice to refile
them with the Court of Appeals should he see fit to do so.

Mr. Toms previously filed a § 2255 motion, which was denied by this
Court on August 8, 2002 [Dkt. 243]. This Court’s denial was subsequently
affirmed by the Court of Appeals. As such, were this Court to consider Mr. Toms’
petition [259] it would have to be treated as a second or successive petition, and
prior to consideration by this Court, Mr. Toms’ motion would have to be certified
by a panel of the Court of Appeals. 28 U.S.C. § 2255(h). Otherwise, this Court
lacks jurisdiction to consider Mr. Toms’ motion. See Farris v. Um`ted States, 333
F.3d 1211, 1216 (11th Cir. 2003). In such an instance, the appropriate action is

then to transfer the petition to the Court of Appeals for their consideration.

Cephas v. Nash, 328 F.3d 98, 104 n.5 (2d Cir. 2003); see also Harris v. Unz`lea'
States, 522 F. Supp. 2d 199, 203 (D.D.C. 2007).

Mr. Tom’s other motion [259], although styled a Rule 35 motion, seeks
relief that would make it appropriate to characterize his petition as one under 28
U.S.C. § 2255. Were it recharacterized, this Court would have to afford notice
and an opportunity to withdraw the petition before recharacterizing it as one under
§ 2255, given the adverse consequences such a characterization might produce for
the litigant. Um'ted States v. Palmer, 296 F.3d 1135, 1146 (D.C. Cir. 2002). A
recharacterization would also make this a second or successive petition and
subject it to preliminary review by the Court of Appeals, before this Court could
consider it.

This Court hesitates to transfer these motions to the Court of Appeals,
though, given that neither is in fact signed by Mr. Toms, nor by his attorney. And
even though they would be treated as second or successive and thus would need to
be transferred to the Court of Appeals, before this Court considers them, there are
still adverse consequences that could flow from such filings, such as an injunction
against future filings, see, e.g., In re Judd, 2006 WL 1565084 (D.C. Cir. Feb. 14,
2006), which gives the Court pause to proceed with such a transfer. This concern
is heightened by the fact that the Court cannot be certain either was actually filed
by Mr. Toms.

Since these documents have not been filed in accordance with Federal Rule

of Civil Procedure ll(a), see RULES GoVERNING SECTION 2255 PRQCEEDINGS 1N

THE U.S. DISTRICT COURTS Rule 12, and as such the Court cannot attribute them
to Mr. Toms, the motions [258, 259] are hereby stricken from the docket without
prejudice to Mr. Toms’ himself refiling them with the Court of Appeals to
determine if they meet the standards set forth under 28 U.S.C. § 2244.

A separate order shall issue this date.

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RoY@E C. LAIMBERTH
Chief Judge
United States District Court

