Opinion
CASES NO. 4:12cr65-RH/CAS CASES NO. 4:17cv273-RH/CAS
08-30-2017
UNITED STATES OF AMERICA v. JERRY KEITH SHIVER, Defendant.
ORDER DISMISSING PETITION
The defendant Jerry Keith Shiver has filed a second motion for relief under 28 U.S.C. § 2255. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 174. No objections have been filed.
The report and recommendation correctly concludes that the court lacks jurisdiction over the defendant's motion. A defendant can pursue a second or successive § 2255 motion only if authorized by the appropriate court of appeals—in this case, the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit has not authorized Mr. Shiver to file a second or successive § 2255 motion.
It bears noting, too, that Mr. Shiver's motion is unfounded on the merits. He cites Johnson v. United States, 135 S. Ct. 2551 (2015), which held unconstitutionally vague the "residual clause" in the armed-career-criminal statute, 18 U.S.C. § 924(e). Mr. Shiver was not sentenced as an armed career criminal. His conviction and sentence would be the same after Johnson as before.
Mr. Shiver also cites Dean v. United States, 137 S. Ct. 1170 (2017). That case accepts the view I have always followed—and followed in Mr. Shiver's case. When a defendant is convicted of a drug crime and also of possessing a firearm in furtherance of the drug crime, see 18 U.S.C. § 924(c), the court may, in determining the sentence on the drug crime, take into account the mandatory consecutive sentence that will be imposed under § 924(c). Mr. Shiver was properly sentenced on this basis—an approach Dean later confirmed was proper. Mr. Shiver's conviction and sentence would be the same after Dean as before.
A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.
The defendant has not made the required showing. This order thus denies a certificate of appealability.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is accepted.
2. The clerk must enter judgment stating, "The second or successive § 2255 motion, ECF No. 173, is denied for lack of jurisdiction."
3. A certificate of appealability is denied.
4. The clerk must close the file.
SO ORDERED on August 30, 2017.
s/ Robert L. Hinkle
United States District Judge