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United States v. Cobb

February 10, 2006

UNITED STATES OF AMERICA,
v.
JEFFREY SCOTT COBB, MOVANT.



The opinion of the court was delivered by: Chief Judge Lewis T. Babcock

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

On January 13, 2006, Movant Jeffrey Scott Cobb filed a pro se Motion pursuant to 28 U.S.C. § 2255. I must construe the Motion liberally, because Mr. Cobb 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's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, I will order that the Motion be transferred to the United States Court of Appeals for the Tenth Circuit.

Mr. Cobb is challenging the validity of his sentence. Movant claims that trial counsel was ineffective when he failed to object to the presentence investigation report in this case. Mr. Cobb also states that other than a direct appeal he has not filed any action with respect to the judgment in the instant criminal case in any federal court.

I find, however, that Movant previously sought relief pursuant to § 2255 in this criminal action and was denied relief. See United States v. Cobb, No. 00-cv-01620-LTB (Criminal Case No. 99-cr-00109-LTB) (D. Colo. May 29, 2001). Therefore, the instant Motion is a second or successive § 2255 motion.

Pursuant to 28 U.S.C. § 2244(b)(3) and 28 U.S.C. § 2255, Mr. Cobb must apply to the Tenth Circuit for an order authorizing this Court 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). Mr. Cobb has not submitted the necessary authorization from the Tenth Circuit allowing me to consider a second or successive § 2255 motion. Accordingly, it is

ORDERED that the Clerk of this Court is directed to transfer the 28 U.S.C. § 2255 Motion, filed January 13, 2006, to the United States Court of Appeals for the Tenth Circuit.

DATED at Denver, Colorado, this 10th day of February , 2006.

LEWIS T. BABCOCK, Chief Judge United States ...


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