Opinion
Case No. 16-C-765 Criminal Case No. 09-Cr-58
06-23-2016
UNITED STATES OF AMERICA, Plaintiff, v. SAMUEL J. POTTS, Defendant-Movant.
DECISION AND ORDER
Pro se Movant Samuel J. Potts filed a motion ostensibly for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) in his criminal case, which the Clerk of Court opened as a civil action for relief pursuant to 28 U.S.C. § 2255. Potts states that § 4B1.2(a) of the United States Sentencing Guidelines was used to enhance his sentence based on his prior robbery conviction, increasing the punishment from 188 to 235 months. Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), he asserts that unconstitutionally vague language in USSG § 4B1.2(a) was applied and he is entitled to a reduction of his sentence.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), which establishes a "'gatekeeping' mechanism for the consideration of 'second or successive federal habeas corpus applications,'" a prisoner must ask the appropriate court of appeals to direct the district court to consider such an application. 28 U.S.C. § 2244(b). Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (citation omitted). Without that authorization, the district court lacks jurisdiction over the petition. Kramer v. United States, 797 F.3d 493, 498 (7th Cir. 2015).
In this case, the instant motion is not Potts' first § 2255 motion. After filing a direct appeal which was dismissed as frivolous, see United States v. Potts, Nos. 09-3301, 09-3319, 2010 WL 1473977, 371 F. App'x. 675 (7th Cir. April 14, 2010), Potts filed a § 2255 motion which, after briefing, was denied on its merits by this Court. See United States v. Potts, No. 11-C-1142, Decision and Order and Judgment entered on Aug. 13, 2013 (E.D. Wis.) (ECF Nos. 65, 66.) Consequently, this § 2255 motion is a successive motion for purposes of the AEDPA, and this Court lacks jurisdiction. See Kramer, 797 F.3d at 498. In order to proceed further with the Guideline-Johnson issue, Potts must first obtain permission from the Seventh Circuit Court of Appeals to file a successive § 2255 motion. This Court also declines to issue a certificate of appealability.
The requirements for a filing a request to file a successive petition for collateral review are stated in Seventh Circuit Rule 22.2. --------
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Pott's successive § 2255 motion (ECF No. 1) is DISMISSED for lack of jurisdiction;
This Court declines to issue a certificate of appealability; and,
The Clerk of Clerk is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of June, 2016.
BY THE COURT:
/s/ _________
HON. RUDOLPH T. RANDA
U.S. District Judge