Opinion
Case No.: 3:14-cv-541-J-32JBT Case No.: 3:05-cr-357-J-32JBT
10-23-2015
ANDRE LEANDER JACKSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Copies: Pro se petitioner Counsel of record
ORDER
This case is before the Court on Petitioner Andre Leander Jackson's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (II Civ. Doc. I). The United States has moved to dismiss the Motion because it is an unauthorized second or successive motion to vacate. (II Civ. Doc. 6). Because Petitioner previously challenged the same conviction and sentence in 2008 pursuant to 28 U.S.C. § 2255, the Court denied that first motion on the merits, and the Eleventh Circuit has not authorized the instant Motion as required by 28 U.S.C. § 2255(h), the United States' motion to dismiss is due to be granted.
Citations to Petitioner's underlying criminal case file, United States v. Andre Leander Jackson, Case No. 3:05-cr-357-J-32JBT, will be denoted as "Crim. Doc. ___." Citations to Petitioner's first civil § 2255 case file, Case No. 3:08-cv-1036-J-32TEM, will be denoted as "I Civ. Doc. ___." Citations to the instant civil § 2255 case file, Case No. 3:14-cv-541-J-32JBT, will be denoted as "II Civ. Doc. ___." --------
In August 2006, Petitioner pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (See Crim. Doc. 81). The Court sentenced him to the 15-year mandatory minimum set forth under 18 U.S.C. § 924(e) for those who qualified as an armed career criminal. (See id.).
In Case No. 3:08-cv-1036-J-32TEM, Petitioner challenged that conviction and sentence through a motion styled as a "Motion to Recall, Void and/or Modify Judgment Pursuant to Writ of Audita Querela, or Alternatively, Pursuant to the Fed. R. Crim. Procedure 2, and/or All Writs Act 28 U.S.C. § 1651(a)." (I Civ. Doc. 1). Pursuant to Castro v. United States, 540 U.S. 375, 383 (2003), the Court notified Petitioner that: (1) the Court intended to recharacterize the motion as a first § 2255 motion, (2) such recharacterization meant that any subsequent § 2255 motion would be subject to the restrictions on "second or successive" motions, and (3) Petitioner had "the opportunity to withdraw his motion or to amend it and submit a new single motion reflecting any and all appropriate § 2255 grounds he believes he has." (I Civ. Doc. 2). Petitioner thereafter filed an Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (I Civ. Doc. 5). Petitioner mainly challenged the Court's decision to count a prior burglary conviction as a "violent felony" when it sentenced him as an armed career criminal. The Court denied the first § 2255 motion on the merits. (I Civ. Doc. 7; I Civ. Doc. 8). Petitioner did not appeal.
In the instant Motion to Vacate (II Civ. Doc. 1), and in subsequent motions to supplement (II Civ. Doc. 7; II Civ. Doc. 15), Petitioner again challenges the Court's decision to count a prior burglary conviction as a "violent felony" for the purpose of sentencing him as an armed career criminal. This time, Petitioner cites Supreme Court and Eleventh Circuit decisions rendered since the Court denied his first § 2255 motion, namely, Descamps v. United States, 133 S. Ct. 2276 (2013), Johnson v. United States, 135 S. Ct. 2551 (2015), and United States v. Jones, 743 F.3d 826 (11th Cir. 2014). The record does not reflect that Petitioner has sought or obtained authorization from the Eleventh Circuit to file a second or successive motion to vacate, as 28 U.S.C. § 2255(h) requires.
When this Court ruled on Petitioner's first motion to vacate, it denied the motion on the merits. (See I Civ. Doc. 7). Thus, "second or successive" status attaches to subsequent § 2255 motions that challenge the same conviction or sentence, including the instant § 2255 motion. See Bovd v. United States, 754 F.3d 1298, 1302 (11th Cir. 2014) ("[S]econd or successive status only attaches to a judgment on the merits.") (citing Slack v. McDaniel, 529 U.S. 473, 485-86 (2000)).
Following the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal prisoner may file a second or successive § 2255 motion "in only the narrowest of circumstances." Wofford v. Scott, 177 F.3d 1236, 1237 (11th Cir. 1999). Under AEDPA
[F]ederal prisoners who want to file a second or successive motion to vacate, set aside, or correct a sentence must move the court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals, § 2244(b)(3)(B), may authorize the filing of a second or successive motion only if it determines that the motion contains claims which rely on either:
In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1998) (per curiam) (quoting 28 U.S.C. § 2255(h)). Until the circuit court of appeals has authorized Petitioner to file a second or successive motion to vacate, this Court may not entertain it because "[t]he bar on second or successive motions is jurisdictional[.]" In re Morgan, 717 F.3d 1186, 1193 (11th Cir. 2013) (citing Panetti v. Quarterman, 551 U.S. 930, 942 (2007)).(1) newly discovered evidence that, if proven and viewed in the 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.
As the Eleventh Circuit has not authorized Petitioner to file this second or successive motion to vacate, it is due to be dismissed without prejudice. Section 2255(h)(2) provides the appropriate vehicle for Petitioner to seek relief if he believes that the Supreme Court's decisions in Descamps and Johnson, supra, announced new, previously unavailable rules of constitutional law that are retroactive on collateral review.
Accordingly, it is hereby
ORDERED:
1. The United States' Motion to Dismiss (Doc. 6) is GRANTED.
2. Petitioner's second or successive Motion to Vacate (II Civ. Doc. 1) is DISMISSED WITHOUT PREJUDICE to his right to re-file it if the Eleventh Circuit Court of Appeals grants him permission to do so.
3. The Court has enclosed a copy of the form for applying to the Eleventh Circuit Court of Appeals for permission to file a second or successive motion to vacate.
4. The Clerk shall close the case.
DONE AND ORDERED at Jacksonville, Florida this 23rd day of October, 2015.
/s/_________
TIMOTHY J. CORRIGAN
United States District Judge
lc 19 Enclosure Copies: Pro se petitioner
Counsel of record
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