Opinion
CASE NO. 8:14-CV-1269-T-27EAJ CRIM. CASE NO. 8:08-CR-135-T-27EAJ
06-03-2014
FREDDICK LAMAR WOODSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the Court for consideration of Petitioner's motion to vacate, set aside, or correct an allegedly illegal conviction and sentence filed pro se pursuant to 28 U.S.C. § 2255 (CV Dkt. 1), and memorandum of law in support of the motion (CV Dkt. 2). A motion to vacate must be reviewed prior to service on the United States. See Rule 4 of the Rules Governing § 2255 Cases. If the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the motion is properly dismissed without a response from the United States. 28 U.S.C. § 2255(b). Upon consideration of the § 2255 motion and the record, the Court concludes that the § 2255 motion must be dismissed as successive.
BACKGROUND
Petitioner was charged by Indictment with felon in possession of a firearm and ammunition (CR Dkt. 1). Petitioner pleaded guilty to the charge pursuant to a plea agreement (CR Dkts. 26, 30, 31). He was sentenced to 180 months imprisonment to be followed by 5 years supervised release (CR Dkts. 36, 39). Petitioner did not appeal. Petitioner's request for collateral relief pursuant to 28 U.S.C. § 2255 was dismissed as time-barred on October 22, 2012. See Woodson v. USA, Case No. 8:12-cv-2112-T-27EAJ (M.D. Fla.2012). Petitioner did not appeal the dismissal of his § 2255 motion.
DISCUSSION
Petitioner now returns to this Court seeking to vacate his conviction and sentence based upon Descamps v. United States, 133 S.Ct. 2276 (2013) and Donawa v. United States, 735 F.3d 1275 (11th Cir. 2013). "[A] second or successive [§ 2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. §2255(h). See also 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously sought collateral relief pursuant to § 2255 which was dismissed as time-barred, and he has not demonstrated that he has obtained permission from the Eleventh Circuit to file a second or successive motion, this Court is without jurisdiction to entertain the instant § 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45 (11th Cir. 2005).
The dismissal of Petitioner's first § 2255 motion as time-barred constitutes an adjudication on the merits for the purposes of invoking the second or successive requirements of 28 U.S.C. § 2244(b)(3). Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351,1353 (11th Cir. 2007) (petitioner required to obtain approval from circuit court of appeal prior to filing second or successive § 2254 petition after first habeas petition was dismissed as untimely); Villenueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003), cert, denied, 542 U.S. 928 (2004) (holding that "a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes.").
Petitioner suggests that if the Court finds the § 2255 motion successive, that the Court, in the alternative, construe the motion as one for relief pursuant to 28 U.S.C. § 2241 (CV Dkt. 2 at p. 2). Under the "savings clause" of § 2255, a petitioner may file a § 2241 petition if he demonstrates that an otherwise available remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003); Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir. 1999). The savings clause applies when (1) a claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of the Supreme Court decision established that the petitioner was convicted for an offense that is now nonexistent; and (3) circuit court law squarely foreclosed such a claim at the time it otherwise should have been raised in the trial, appeal, or first § 2255 motion. Sawyer, 326 F.3d at 1365 (citing Wofford, 177 F.3d at 1244). All three criteria must be satisfied in order for a petitioner to proceed under the savings clause. Flores v. McFadden, 152 Fed.Appx. 913, 914 (11th Cir. 2005) (unpublished), cert. denied, 547 U.S. 1173 (2006).
Petitioner has not satisfied all three elements under the savings clause. Donawa is a circuit court decision, not a Supreme Court decision. And although Descamps is a Supreme Court decision, the Supreme Court did not make the rule announced in Descamps retroactive to cases on collateral review. See Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013) ("The declaration of retroactivity must come from the Justices."). And district courts have uniformly rejected the retroactive application of Descamps. See Reed v. United States, 2013 WL 5567703, 3 (M.D.Fla.,2013); United States v. Chapman, 2014 U.S. Dist. LEXIS 65907, at *10 (D. Tex. May 14, 2014) ("While no circuit court has addressed the issue, the district courts that have done so consistently hold that Descamps does not apply retroactively to cases on collateral review.") (citations omitted); Harr v. United States, 2014 U.S. Dist. LEXIS 58692, at *8 (CD. Ill. Apr. 28, 2014) Descamps did not announce a new rule, but rather reaffirmed existing Supreme Court precedent while rejecting the Ninth Circuit Court of Appeal's departure from established Supreme Court caselaw."). Relief under § 2241 is therefore unavailable..
This case will therefore be dismissed to enable Petitioner to seek authorization from the Eleventh Circuit to file a second § 2255 motion.
ACCORDINGLY:
1. The motion to vacate, set aside, or correct an illegal sentence is DISMISSED, without prejudice, for lack of jurisdiction (CV Dkt. 1).
2. The Clerk is directed to send Petitioner the Eleventh Circuit's application form for leave to file a second or successive § 2255 motion under 28 U.S.C. § 2244(b).
3. The Clerk shall close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c) (2). To make such a showing, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a COA should issue only when a petitioner shows "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." Slack, 529 U.S. at 484. Because the instant § 2255 motion is clearly a successive motion, Petitioner cannot make the requisite showing in these circumstances. Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
__________
JAMES D. WHITTEMORE
United States District Judge
Copy furnished to:
Petitioner pro se