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Ivory v. United States

United States District Court, N.D. Alabama, Southern Division

January 24, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 2:03-CR-0394-SLB-HGD



         This 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.)[1] 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 dismissed.


         On or 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.[2] The conviction and sentence were affirmed on appeal on October 6, 2006. United States v. Ivory, 199 Fed.Appx. 896 (11th Cir. 2006).

         On 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).

         Ivory filed the instant Motion for Relief on May 4, 2016. (Doc. 1.) He contends, “Following Johnson, [3] 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 Ivory's Armed Career Criminal sentence is no longer valid or sustainable.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, [4] the 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].)


         Section 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.”[5] 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 Cir. 2014).

         Because 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, [6] these decisions do not excuse a petitioner from first seeking such authorization before filing a second or successive habeas application.

         Congress 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.”[7] 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)).

         “To 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.”[8] 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. 21, 2015).

         “This 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.”[9]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).

         The 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.

         As an 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 F.3d ...

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