United States District Court, E.D. Kentucky, Central Division, Lexington
E. Wier United States Magistrate Judge
Samuel Lewaco Clay, is a federal inmate. DE #87 (Motion). On
January 10, 2017,  Clay filed a pro se 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.
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.
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
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). 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.
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.
§ 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
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. §
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 §
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.
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 ...