Opinion
CRIMINAL ACTION 94-CR-12-DLB Civil Action 20-CV-152-DLB
12-29-2020
UNITED STATES OF AMERICA, PLAINTIFF, v. ROBERT KENNETH BRINSON, DEFENDANT.
RECOMMENDED DISPOSITION
EDWARD B. ATKINS, UNITED STATES MAGISTRATE JUDGE
Robert Kenneth Brinson, a federal prisoner, has filed his second motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct his sentence. [R. 60]. Because the Court previously adjudicated his first motion to vacate [R. 33, 45] the undersigned recommends that that this matter be transferred to the United States Court of Appeals for the Sixth Circuit as a “second or successive” petition under § 2255(h).
Section 2244(a) provides that no district court
shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.28 U.S.C. § 2244(a); see 28 U.S.C. § 2255(h) (providing standard for certification of second or successive motion). As a result, the current motion is procedurally barred unless the Sixth Circuit determines that Brinson has presented new factual evidence or demonstrated a new rule of constitutional law. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012); see 28 U.S.C. § 2255(h) (“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 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 fact finder 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.”); see also Albo v. United States, 498 F. App’x 490 (6th Cir. 2012); West v. Bell, 550 F.3d 542 (6th Cir. 2008). As a result, the Sixth Circuit must determine whether Brinson's claims fits within one of these exceptions before the district court may consider his arguments.
Therefore, IT IS RECOMMENDED that the District Judge order the transfer of Defendant Robert Kenneth Brinson’s current motion [R. 60] to the United States Court of Appeals for the Sixth Circuit as a successive petition in accordance with 28 U.S.C. § 2255(h), 28 U.S.C. § 2244(a), and Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts.