United States District Court, N.D. Alabama, Southern Division
LOVELACE BLACKBURN SENIOR UNITED STATES DISTRICT JUDGE
case is presently pending before the court on Motion for
Relief Under 28 U.S.C. § 2255 and United States v.
Johnson, filed by petitioner, Michael Lewis Ivory. (Doc. 1;
crim. doc. 52.) This is Ivory's second habeas petition
attacking his convictions and sentence in his criminal case.
He does not have authorization from the Eleventh Circuit to
file the instant Motion; therefore, the court is without
jurisdiction. The court finds that Ivory's Motion for
Relief is due to be denied and this case is due to be
about July 31, 2003, Ivory was indicted on one count of being
a felon in possession of a firearm. (Crim. doc. 1.) After a
jury trial, he was found guilty. (Crim. doc. 14.) On May 18,
2004, the court sentenced Ivory as an armed career criminal
to a term of imprisonment of 262 months, with credit for time
served in state custody. (Crim. doc. 40.) The court found
that Ivory had three prior convictions for serious drug
offenses. The conviction and sentence were affirmed
on appeal on October 6, 2006. United States v.
Ivory, 199 Fed.Appx. 896 (11th Cir. 2006).
September 24, 2007, Ivory filed a Petition Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct, challenging his
conviction and sentence based on ineffective assistance of
counsel and prosecutorial misconduct. (Crim. doc. 51.) The
court denied his Motion to Vacate, dismissed his habeas
petition, and denied a Certificate of Appealability.
Ivory v. United States, Civil Action No.
2:07-CV-8030-SLB-HGD, doc. 16 (N.D. Ala. (Aug. 22, 2008);
id., doc. 18 (Feb. 2, 2009); see also id.,
doc. 13 [Report and Recommendation] (June 13, 2008). The
Eleventh Circuit denied Ivory's Motion for a Certificate
of Appealability. Ivory v. United States, No.
09-12005-H (11th Cir. July 28, 2009).
filed the instant Motion for Relief on May 4, 2016. (Doc. 1.)
He contends, “Following Johnson,  Mr. Ivory's
Armed Career Criminal sentence is no longer valid or
sustainable. With the retroactive application of Johnson,
decided in WELCH V. UNITED STATES, no. 15-6418,
prior convictions, which served as predicates for his ACCA
status, included multiple crimes under the residual clause of
the ACCA, and he no longer has three ‘violent felonies
or serious drug felonies' as required by 18 U.S.C. §
924(e).” (Doc. 1 at 2 [footnotes added].)
2244(a) states, “No . . . district judge shall be
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 by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
2255.” 28 U.S.C. § 2244(a)(footnote added).
“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. (b)(3)(A). “Without
authorization, the district court lacks jurisdiction to
consider a second or successive petition.” United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005)(citing Farris v. United States, 333 F.3d 1211,
1216 (11th Cir. 2003)). “[Section] § 2244(a)
applies to any petition for habeas relief attacking the
legality of the same detention, and § 2244(b)(3)
requires that the petitioner obtain permission from the court
of appeals before filing any second or successive petition
attacking the same detention.” McKinney v. Warden,
FCC Coleman-Medium, 870 F.Supp.2d 1351, 1354 (M.D. Fla.
2012)(citing Darby v. Hawk-Sawyer, 405 F.3d 942
(11th Cir.2005)), aff'd, 562 Fed.Appx. 917 (11th
Ivory had previously filed a § 2255 habeas petition that
challenged his conviction and sentence, he was required to
have authorization from the Eleventh Circuit before filing
his instant Motion for Relief. Ivory alleges, however, that
the “instant petition is not a second or successive
petition . . . . Mr. Ivory's petition is based solely on
the recent opinion of the Supreme Court in Johnson. . . .
Thus, he now seeks habeas relief based [entirely] on a claim,
which was unavailable at the time of his previous[ ] habeas
petition.” (Doc. 1 at 4.) Although Johnson and
Welch may provide a basis for the Eleventh
Circuit's grant of authorization to file a second or
successive application,  these decisions do not excuse a
petitioner from first seeking such authorization before
filing a second or successive habeas application.
did not define the phrase “second or successive
motion” used in § 2255(h); however, the Supreme
Court has “declined to interpret ‘second or
successive' as referring to all § 2254 [or §
2255] applications filed second or successively in
time.” Panetti v. Quarterman, 551 U.S. 930,
944 (2007)(emphasis added); see also Stewart v. United
States, 646 F.3d 856, 860 n.6 (11th Cir.
2011)(“Because of the similarities between the
provisions governing second or successive petitions under
§ 2254 and second or successive motions under §
2255, precedent interpreting one of these parallel
restrictions is instructive for interpreting its
counterpart.”). The Eleventh Circuit has
“recognized the existence of ‘a small subset of
unavailable claims that must not be categorized as
successive, ' but [Ivory's] claim is not one of
them.” Ellis v. United States, 593
Fed.Appx. 894, 896-97 (11th Cir. 2014)(citing
Stewart, 646 F.3d at 863 (11th Cir. 2011)(petition
filed after state-court conviction used to enhance sentence
was vacated was not successive)).
determine whether a prisoner's petition is second or
successive, [the court] must look to whether the petitioner
previously filed a federal habeas petition challenging the
same judgment.” Rivera v. Sec'y, Florida Dep't
of Corr., No. 15-15709, 2016 WL 6677629, *1 (11th Cir.
Nov. 14, 2016)(citing Insignares, 755 F.3d at 1278).
A habeas petitioner, challenging the same judgment as an
earlier-filed petition that was decided on the merits, must
receive authorization from the Eleventh Circuit before filing
his second or successive habeas application for relief.
Maxwell v. United States, No. 3:09-CR-38-J-32MCR,
2016 WL 345519, *2 (M.D. Fla. Jan. 28, 2016)(citing
Burton v. Stewart, 549 U.S. 147, 153 (2007),
Boyd v. United States, 754 F.3d 1298, 1302 (11th
Cir. 2014), and United States v. Holt, 417 F.3d
1172, 1175 (11th Cir. 2005)); see also Garcia v. United
States, No. CR 04-147-CG-N, 2015 WL 5608247, *3 (S.D.
Ala. Aug. 26, 2015)(“To the extent the present motion
is construed as an attack on [defendant's] underlying
conviction and sentence, that means he will have ‘twice
brought claims contesting the same custody imposed by the
same judgment of [this C]ourt. As a result, under AEDPA, he
[i]s required to receive authorization from the Court of
Appeals before filing his second challenge.'”
(quoting Burton, 549 U.S. at 153)), report and
recommendation adopted, 2015 WL 5602446 (S.D. Ala. Sept.
authorization is required even when, as here, a defendant
asserts that his motion is based on the existence of a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.”United States v. Mitchell, No.
3:03CR57/LAC/CJK, 2015 WL 5635001, *2 (N.D. Fla. Aug. 20,
2015)(emphasis added), report and recommendation adopted 2015
WL 5674849 (N.D. Fla. Sept. 22, 2015).
court rejects Ivory's contention that this habeas
proceeding is not a second or successive proceeding and,
because he has not been granted authorization to file a
second or successive petition, the court is without
jurisdiction and his Motion will be denied.
alternative to dismissal, Ivory asks the court to
“forward the petition to the Eleventh Circuit for
certification.” (Doc. 1 at 4.) Federal law allows this
court to transfer this case to another federal court if it
“finds that there is a want of jurisdiction” and
such transfer “is in the interest of justice.” 28
U.S.C. § 1631. Because the court finds that Ivory cannot
establish a prima facie case for relief pursuant to
Johnson, transfer to the Eleventh Circuit is not in
the interest of justice. See Phillips v. Seiter, 173