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United States v. Clay

United States District Court, E.D. Kentucky, Central Division, Lexington

February 8, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SAMUEL LEWACO CLAY, Defendant/Movant.

          RECOMMENDED DISPOSITION

          Robert E. Wier United States Magistrate Judge

         Movant, Samuel Lewaco Clay, is a federal inmate. DE #87 (Motion). On January 10, 2017, [1] Clay filed a pro se[2] motion under 28 U.S.C. § 2255. See generally Id. The Court has conducted an initial review of the filing. The motion is second or successive, and Clay has not secured Sixth Circuit authorization to file. Normally, the Court would recommend transfer, per In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), and 28 U.S.C. § 1631. However, the Sixth Circuit already rejected Clay's efforts to present this claim in a second or successive § 2255 motion. As such, the Court recommends dismissal per the prior Circuit order.

         I. BACKGROUND INFORMATION

         Clay pleaded guilty to aggravated crack distribution, pursuant to a plea agreement, on August 16, 2006. DE ##30 (Minute Entry); 27 (Plea Agreement). Judge Hood sentenced Clay on December 11, 2006. DE #39 (Minute Entry). Movant received a 262-month prison term, followed by 8 years of supervised release. DE #42 (Judgment). Clay appealed; the Sixth Circuit affirmed, and the Supreme Court denied certiorari on June 2, 2008. DE ##43, 55, 58.

         On June 6, 2009, Clay filed a § 2255 motion. DE #63 (Motion). The United States moved to dismiss the § 2255 motion as time-barred. DE #66. After briefing and a recommended disposition, Judge Hood denied the motion as untimely and did not issue a certificate of appealability. DE #71 (Memorandum Opinion & Order). Clay did not seek review by the Sixth Circuit.

         The next relevant action in the case occurred on June 13, 2016, following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).[3] Clay filed a petition with the Sixth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A) for permission to file a Johnson-based second or successive § 2255 motion. DE #84 (Copy of § 2244 Motion). Clay argued that, following Johnson, he no longer qualifies as a career offender under § 4B1.1 of the Sentencing Guidelines. He contended that the predicate conviction for the Kentucky felony of assault under extreme emotional disturbance is not a crime of violence post-Johnson. Id. at 3-6. The Sixth Circuit rejected this argument, holding that the assault conviction qualifies under the section's elements clause, not the residual clause potentially invalidated by Johnson. DE #86 (Sixth Circuit Order), at 2. The Circuit denied permission to file a second or successive § 2255 motion. Id. at 3.

         Clay now improperly attempts to file the claim the Sixth Circuit rejected, via a document essentially identical to the motion the Sixth Circuit denied permission to file, premised on Johnson and Beckles v. United States, 136 S.Ct. 2510 (2016) (granting certiorari to address the issue of whether Johnson applies to the Sentencing Guidelines, and if so whether it applies retroactively). DE #87. The Circuit clearly held: "Clay has not, however, demonstrated that his sentence may be affected if Johnson applies retroactively to Guidelines cases. . . . Because Clay has not demonstrated that his assault conviction was counted under the residual clause, he has not made a prima facie showing that it is affected by Johnson'' DE #86, at 2. The Order expressly bars the filing Clay now endeavors to make.[4]

         II. ANALYSIS

         In the § 2255 motion, Clay again requests relief based on the proposition that he no longer qualifies as a career offender under § 4B1.1 after Johnson. The Supreme Court will address the applicability of Johnson to the Sentencing Guidelines (and the issue of retroactivity on collateral review) this term. Beckles, 136 S.Ct. at 2510.

         "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2). "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Id. § 2244(b)(3)(A).

         This is unquestionably a second or successive § 2255 petition. Burton v. Stewart, 127 S.Ct. 793 (2007) (per curiam). Clay filed the first in June 2009. DE #63 (§ 2255 Motion). The United States moved to dismiss the motion as time-barred, DE #66, and Clay responded as to the statute of limitations issue. DE #67. Judge Wehrman issued a thorough recommended disposition. DE #69. Clay objected. DE #70. The District Court adopted the recommendation, overruled Clay's objections, and denied the § 2255 motion as time-barred. DE #71. Judge Hood denied a Certificate of Appealability, id, and Clay did not seek review by the Sixth Circuit. Courts consider the proper dismissal of a prior § 2255 motion as time-barred an adjudication on the merits, rendering any new motion "second or successive." See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011); In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009) (per curiam); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003); cf. In re Cook, 215 F.3d 606, 607-08 (6th Cir. 2000) (where a petitioner's initial habeas petition "was dismissed for unexcused procedural default and was therefore 'on the merits, ' [a new] application is a 'second or successive habeas corpus application' under § 2254(b)").

         The Court elects against transfer here because Circuit consideration of the precise predicate claim already has occurred. Clay raised the potential Johnson issue in a § 2244 motion, and the Circuit rejected a second § 2255 as unjustified. Clay ignored that finding and made the subject filing anyway. The Court deems this a violation of the Circuit's order. Dismissal, rather than transfer, is the proper result because the Sixth Circuit has already dealt with and denied the request to certify a § 2255 claim on this subject matter.

         III. RECOMMENDATION

         For the reasons discussed above, the Court RECOMMENDS that the District Judge DISMISS Clay's § 2255 motion (DE #87) as second or successive and foreclosed by the ...


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