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

this 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 for using or carrying a firearm in relation to a drug

crime in violation of 18 U.S.C. § 924(c) in light of Bailey 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.
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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 was 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 now 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, made
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retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable. See 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 authorization to file a successive § 2255

motion is DENIED.