Opinion
2:13-CV-631 2:00-CR-0024(2)
07-01-2013
TRACY JOHNSON v. UNITED STATES OF AMERICA
Judge Graham
Magistrate Judge King
REPORT AND RECOMMENDATION
Petitioner was convicted of conspiracy in violation of 21 U.S.C. § 846, two counts of distribution of crack cocaine in violation of 21 U.S.C. § 841 and two counts of carrying and brandishing a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c). Judgment, Doc. No. 66. Petitioner's conviction and sentence were affirmed by the United States Court of Appeals for the Sixth Circuit, United States v. Clark, 41 F. App'x 745, 747 (6th Cir. June 24, 2002), and the United States Supreme Court denied petitioner's petition for a writ of certiorari. Johnson v. United States, 537 U.S. 1114 (2003). Petitioner thereafter filed a motion to vacate sentence under 28 U.S.C. § 2255, claiming that the United States Sentencing Guidelines are unconstitutional as applied to him, that the Court lacked jurisdiction to convict or sentence him because count one failed to charge a crime, that an informant's testimony denied him due process of law and a fair trial and that he was denied the effective assistance of counsel. The motion to vacate was dismissed, Order, Doc. No. 121, and the United States Court of Appeals for the Sixth Circuit declined to issue a certificate of appealability. Johnson v. United States of America, Case No. 07-3208 (6th Cir. Oct. 15, 2007). The United States Supreme Court denied petitioner's petition for a writ of certiorari. Johnson v. United States, 555 U.S. 978 (2008).
This matter is now before the Court on petitioner's "Request the Court to Take Judicial Notice," Doc. No. 151, in which petitioner alleges that Alleyne v. United States, 133 S.Ct. 2151 (2013), requires that this Court revisit petitioner's convictions under 18 U.S.C. § 924(c) and its dismissal of his earlier claims of ineffective assistance of counsel.
Petitioner's motion is a successive petition under 28 U.S.C. § 2255. This Court lacks authority to consider petitioner's motion absent authorization by the United States Court of Appeals for the Sixth Circuit. See 28 U.S.C. § 2255(h).
It is RECOMMENDED that this matter be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition under 28 U.S.C. § 2255.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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Norah McCann King
United States Magistrate Judge