IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK SUMMEY, :

Petitioner : No. 4: CV-05-0676

: (Judge McClure)

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA, :

Respondent :

O R D E R

April 25, 2005

BACKGROUND:

On April 4, 2005, petitioner, Frederick Summey, an inmate at the United

States Penitentiary at Allenwood, White Deer, Pennsylvania, filed the instant petition

for writ of habeas corpus. The same day, Summey filed with this court a “motion

pursuant to U.S.C. § 2244 for permission to file a second or successive U.S.C. §

2255".

The matter was initially referred to United States Magistrate Judge Thomas

M. Blewitt. Magistrate Judge Blewitt gave preliminary consideration to the petition,

and on April 19, 2005 filed a 13-page report and recommendation with the

concluding recommendation that the petition be dismissed for lack of jurisdiction,

as the petition was essentially a 28 U.S.C. § 2255 motion. 

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In a footnote, the magistrate judge noted that petitioner also filed with the

court a motion under § 2244 for permission to file a second or successive § 2255

motion. He further noted simply that such a motion must be filed in the appropriate

court of appeals. 

On April 20, 2005, the clerk docketed a letter from Summey indicating that

he had recently found out that his documents seeking permission to file the second

or successive § 2255 motion should have been filed with the United States Court of

Appeals for the Third Circuit, and asked that the document be forwarded to the

appropriate court. 

The court will not await any further objections to the report and

recommendation as it is quite clear that in the first place, this court is without

subject matter jurisdiction to consider a second or successive § 2255 motion, and

the motion for permission to file a second or successive motion under 28 U.S.C. §

2255 should be forwarded to the Court of Appeals for its consideration. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 

1. The report and recommendation of United States Magistrate Judge

Thomas M. Blewitt (rec. doc. no. 9, filed April 19, 2005) is adopted in full and

approved for the reasons stated therein.

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2. The petition for a writ of habeas corpus, filed April 4, 2005, is

dismissed, without prejudice, for lack of subject matter jurisdiction, as it constitutes

a second or successive motion under 28 U.S.C. § 2255. 

3. The clerk is directed to forward to the United States Court of Appeals

for the Third Circuit Summey’s motion for permission to file a second or

successive motion under 28 U.S.C. § 2255 as well as the underlying petition for

writ of habeas corpus, which presumably is the petition he would file with this court

if and when he obtains permission to do so from the Third Circuit. 

4. The clerk is directed to close the case file. 

5. There is no basis for a certificate of appealability. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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