Opinion
Case No. 1:08-cr-068 Case No. 1:10-cv-583 Case No. 1:08-cr-069 Case No. 1:10-cv-901
07-22-2014
UNITED STATES OF AMERICA, Plaintiff, v. CLARENCE NELSON, Defendant.
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TRANSFER ORDER
These cases are before the Court on Defendant's Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255 (filed as Doc. No. 232 in Case 068 and Doc. No. 116 in Case 069).
28 U.S.C. § 2255(h) provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence which, 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 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.
The instant Motion is Nelson's second § 2255 Motion in each of these cases. In Case No. 1:08-cr-068, he filed a § 2255 Motion on August 27, 2010 (Doc. No. 187). Chief Judge Dlott denied the Motion with prejudice March 10, 2011 (Doc. No. 203). In Case No. 1:08-cr-069 he filed a § 2255 Motion December 15, 2010 (Doc. No. 78). The Motion was denied with prejudice by Chief Judge Dlott November 16, 2012 (Doc. No. 107). The Sixth Circuit denied appeals in both cases on November 25, 2013. Nelson v. United States, Case No. 12-4471/4472 (6th Cir. Nov. 25, 2013)(unreported, copy at Doc. No. 230 in 1:08-cr-068).
A district court lacks jurisdiction to consider a second or successive petition without approval by the circuit court. Burton v. Stewart, 549 U.S. 147 (2007). If a purported motion for relief from judgment attacks the conviction rather than the district court's judgment, it should be transferred to the circuit court for permission to file. United States v. Alford, Case No. 11-4067 (6th Cir. 11/12/2013)(copy at 3:00-cr-065, Doc. No. 156), citing Gonzalez v. Crosby, 545 U.S. 524 (2005), and In re Sims, 111 F.3d 45 (6th Cir. 1997).
Nelson acknowledges the Motion is a second one in each case and that he has not obtained permission from the Sixth Circuit to proceed. He argues, however, that that failure should be
disregarded based upon the following reasonaing [sic]. (1) It is an undisputable fact that the Movant has in fact filed a previous § 2255 motion, however, it shall be noted that the only purpose for filing this previous § 2255 petition was to reinstate the Movant's direct appeal rights, and in regards to the issues which were advanced and dismissed by the District Court, was pursued because the Movant was under the impression that if he failed to include all issues that he would essentially lose the full and fair opportunity to make such said collateral attack.(Motion, Doc. No. 232, PageID 673-74.) The fact that, as Nelson asserts. his only purpose in filing the prior Motions was to get his appeal reinstated, is immaterial. The AEDPA does not distinguish between cases where one has such a purpose and those where one has other or multiple purposes. Rather, the statute commands that, before filing a second § 2255 Motion fgor any purpose, the defendant must obtain permission of the court of appeals.
Therefore, as outlined above the Movant's only choice was to attach all possible claims, including those that claims that could have been raised on direct appeal, which as a result the District
Court dismissed all of these other claims with the exception of the claim of "whether counsel Kevin Michael Schad. had in fact failed to pursue a notice of appeal upon the Movant's request to do so, however, at the conclusion of the evidentiary hearing which was held on July 2011, it was recommended by the United States Magistrate Judge that the Movant's ineffective assistance of counsel claim shall be rejected.
Accordingly, the Clerk is ORDERED to transfer this matter to the United States Court of Appeals for the Sixth Circuit for a determination of whether to grant Nelson permission to proceed. __________
Michael K. Merz