United States District Court, N.D. Alabama, Southern Division
LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE
case is presently pending before the court on Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody [Motion to Vacate], filed by
petitioner Herman Dewayne Cargill, III. (Doc. 1; crim. doc.
Cargill has previously filed a § 2255 Motion to Vacate
attacking his conviction and sentence; he does not have
authorization from the Eleventh Circuit to file the instant
Motion to Vacate. Therefore, the court is without
jurisdiction. Cargill's Motion for Relief, (doc. 1; crim.
doc. 33), will be denied and this case will be dismissed.
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). “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).
Cargill has previously filed a § 2255 habeas petition
that challenged his conviction and sentence, see Cargill
v. United States, Case No. 2:13-CV-8032 (N.D. Ala.), he
must have authorization from the Eleventh Circuit before
filing another § 2255 Motion to Vacate. Although
Dean v. United States, 137 S.Ct. 1170 (2017), cited
by Cargill in his Motion to Vacate, (doc. 1 at 4; crim. doc.
33 at 4), may provide a basis for the Eleventh Circuit's
grant of authorization to file a second or successive Motion
to Vacate,  this decision does 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 [Cargill'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)(emphasis added). 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.
Cargill has not been granted authorization to file a second
or successive petition, the court is without jurisdiction and
his Motion to Vacate will be denied. An Order denying the
Motion to Vacate and dismissing this case will be entered
contemporaneously with this Memorandum Opinion.
of the Rules Governing § 2255 Proceedings, provides,
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief
“cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c).” Fed. R.
App. P. 22(b)(1). And, the “certificate of
appealability may issue . . . only
if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2)(emphasis added). To make a substantial showing of
the denial of a constitutional right, the applicant must show
“that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003)(citations and internal quotations omitted).
court lacks jurisdiction to entertain Cargill's second
habeas petition without authorization from the Eleventh
Circuit Court of Appeals. Reasonable jurists could not
disagree. Therefore, issuance of a certificate of
appealability is not warranted in this case.