Opinion
Case No. CV413-221 Case No. CR495-123
11-14-2013
ANDRE CHRISTOPHER MYERS, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Andre Christopher Myers has submitted for filing his fourth 28 U.S.C. § 2255 motion attacking the same drug conviction that he has previously challenged under § 2255. CR495-123, doc. 1206, see also docs. 803, 849, 863 (first § 2255 motion and rulings denying it); docs. 1063 & 1064 (second § 2255 motion and adverse ruling); docs. 1155 & 1161 (third § 2255 motion and adverse ruling). Since this is a successive § 2255 motion, Myers must first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A); see 28 U.S.C. § 2255(h) (cross-referencing § 2244 certification requirement).
This time he claims that he has gotten a prior conviction - used to enhance his sentence here - vacated. Thus, he contends, he is entitled to relief pursuant to McQuiggin v. Perkins, ____ U.S. ____, 133 S. Ct. 192 (2013) (actual innocence meets the miscarriage of justice exception, which applies to the time bar in 28 U.S.C. § 2244(d)(1), so a petition based on actual innocence is timely even if filed after the one-year period) and Spencer v. United States, 727 F.3d 1076, 1091 (11th Cir. 2013) (erroneous career offender designation is cognizable under a timely filed § 2255 motion even in the case of a defendant sentenced after Booker). Doc. 1206 at 14-19.
The Court takes no position on McQuiggin's retroactivity or its application to him, but notes United States v. Robinson, 2013 WL 5874012 at * 3 (D. Kan. Oct. 30, 2013) (McQuiggin does not extend the Supreme Court's previous rulings on the actual innocence exception to noncapital sentences), and reminds Myers that before he gets to that point he must show that he was sentenced higher than the statutory maximum sentence allowed even without a sentencing enhancement. See 28 U.S.C. § 2255(a) (providing for attack of sentence that is in excess of that maximum as authorized by law), cited in Clayton v. United States, 2013 WL 3381373 at * 3 (W.D.N.C. July 8, 2013). While Myers also raises a ground under Alleyne v. United States, ____ U.S. ____, 133 S. Ct. 2151 (2013), that case is not retroactive and in any event does not surmount the successiveness bar. Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); Portocarrero v. United States, 2013 WL 5944246 at * 2 (M.D. Fla. Nov. 6, 2013); Fredriksen v. United States, 2013 WL 4776314 at * 2 (S.D. Ala. Sept. 5, 2013).
In fact, district courts must dismiss second or successive petitions, without awaiting any response from the government, absent prior approval by the court of appeals. Levert v. United States, 280 F. App'x 936, 936 (11th Cir. 2008) ("Without authorization, the district court lacks jurisdiction to consider a second or successive petition."); Mattox v. United States, 460 F. App'x 828, 829 (11th Cir. 2012) ("When a prisoner has previously filed a § 2255 motion . . . he must apply for and receive permission from us before filing a successive § 2255 motion") (quotes and cite omitted). Because Myers has filed this latest § 2255 motion without prior Eleventh Circuit approval, this Court is without jurisdiction to consider it. Consequently, it should be DISMISSED as successive.
Applying the Certificate of Appealability ("COA") standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
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UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA