United States District Court, E.D. Kentucky, Northern Division, Covington
A. Ingram United States Magistrate Judge.
December 20, 2016, Defendant, proceeding pro se,
filed a motion to vacate under 28 U.S.C. §
2255. D.E. 127. Defendant filed a previous
§ 2255 motion earlier this year. D.E. 108. Because
Defendant's current motion is “second or
successive” under § 2255(h), the undersigned
RECOMMENDS that this matter be transferred to the United
States Court of Appeals for the Sixth Circuit pursuant to
In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per
curiam) and Rule 9 of the Rules Governing Section 2255
prior motion, Defendant invoked Johnson v. United
States, 135 S.Ct. 2551 (2015), as providing both the
legal basis of his motion and the basis of his motion's
timeliness. D.E. 108 at 4, 10. In Johnson, the
Supreme Court held that the “residual clause” of
the Armed Career Criminal Act's definition of
“violent felony” was unconstitutionally vague.
Later, in United States v. Pawlak, 822 F.3d 902 (6th
Cir. 2016)), the Sixth Circuit held that the identically
worded residual clause in the Sentencing Guidelines'
Career Offender Guideline was likewise invalid. However, the
question of whether Johnson applies to the Career
Offender residual clause at USSG § 4B1.2(a)(2) is
currently before the Supreme Court in Beckles v. United
States, 136 S.Ct. 2510 (2016).
initial review, the undersigned recommended dismissing
Defendant's June 2016 motion on several bases. D.E. 110.
First, on the merits, Johnson and Pawlak
did not apply because Defendant's Career Offender
designation was based on prior drug trafficking offenses, not
crimes of violence. Id. at 3-6. Second,
Defendant's motions was not filed within the one-year
deadline. Defendant could not use Johnson's
retroactivity to reset the statute of limitations under 28
U.S.C. § 2255(f)(3) because Johnson did not
apply to his case. Id. Third, any error in applying
the Career Offender designation was harmless because his base
offense level was not affected by his Career Offender
designation. Id. at 6. The Court also noted that the
District Judge varied downward and gave Defendant a
below-Guidelines sentence. Id.
26, 2016, the District Judge adopted the Recommendation (D.E.
118) and denied Defendant's § 2255 motion (D.E.
new motion argues that the Court erred in deciding his prior
motion because it failed to apply Mathis v. United
States, 136 S.Ct. 2243 (2016). D.E. 127-1 at 3
(“Mathis serves as the basis for this
collateral attack on Movant[']s status as being a Career
Anti-Terrorism and Effective Death Penalty Act (AEDPA) of
1996 states that a court is not “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 . . . on a prior application
for a writ of habeas corpus, except as provided in section
2255.” 28 U.S.C. § 2244(a). Section 2255(h) states
that “[a] second or successive motion must be certified
as provided in section 2244 by a panel of the appropriate
court of appeals[.]” 28 U.S.C. § 2255(h). In order
to obtain such certification, a defendant must show that
either (1) that there is newly discovered evidence that, when
viewed in light of the evidence as a whole, would be
sufficient to establish that no reasonable factfinder would
have found the movant guilty of the offense; or (2) there is
a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable. Id. Unless the Court of
Appeals has authorized the filing of a “second or
successive” petition, a district court must transfer
the petition to the Sixth Circuit no matter how meritorious
the claim may be. In Re Sims, 111 F.3d at 47.
U.S.C. § 2244(b) does not define what constitutes a
“second or successive” petition. It is clear that
not every numerically second petition is “second or
successive.” See Slack v. McDaniel, 529 U.S.
473, 487 (2000) (a petition filed after a mixed petition has
been dismissed before the district court has adjudicated any
claim is not a second or successive petition); Stewart v.
Martinez-Villareal, 523 U.S. 637 (1998) (a numerically
second petition alleging a claim that was contained in a
first petition, but dismissed as unripe, is not second or
successive). Otherwise, “a dismissal of a first habeas
petition for technical procedural reasons would bar the
prisoner from ever obtaining federal habeas review.”
Id. at 645. One reason that subsequent petitions are
not considered “successive” is that the prior
dispositions were not “on the merits.”
Slack, 529 U.S. at 485-86; Carlson v.
Pitcher, 137 F.3d 416 (6th Cir. 1998); Camarano v.
Irvin, 98 F.3d 44, 46-47 (2d Cir. 1996).
Defendant is raising a similar challenge to his Career
Offender designation that he raised in his prior § 2255
motion. He is attacking the same sentence that was challenged
in his prior motion. Therefore, this motion is second or
successive within the meaning of §§ 2244 and 2255.
Thus, Defendant is required to seek certification from the
Sixth Circuit pursuant to § 2255. For this reason, the
undersigned RECOMMENDS that Defendant's motion (D.E. 127)
be transferred to the Sixth Circuit for a determination as to
whether the District Court may review it.
Court directs the parties to 28 U.S.C. § 636(b)(1) for
appeal rights and mechanics concerning this Recommended
Disposition, issued under subsection (B) of the statute.
See also Rules Governing Section 2255 Proceedings,
Rule 8(b). Within fourteen days after being served with a
copy of this decision, any party may serve and file specific
written objections to any or all findings or recommendations
for determination, de novo, by the District Court.
Failure to make a timely objection consistent with the
statute and rule may, and normally will, result in waiver of
further appeal to or review by the District Court and Court
of Appeals. See Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Walters, 638 F.2d 947, 950
(6th Cir. 1981).