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

t his 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 f or using or carrying a firearm in relation to a drug

crime in violation of 18 U.S.C. § 924(c) in light of B ailey 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 § 2255.2

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 w as 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 no w 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, made3

ret roactive to cases on collateral review by the Supreme Court,

that was previously unavailable. S ee 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 aut horization to file a successive § 2255

motion is DENIED

.