United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
the court is the 28 U.S.C. § 2255 motion filed on June
21, 2016, by federal inmate Rhonda Jennings
(“Jennings”). (Doc. # 2.) Jennings contends that
the U.S. Supreme Court's holding in Johnson v. United
States, 576 U.S., 135 S.Ct. 2551 (2015),  invalidates her
2005 conviction for possession of a firearm in furtherance of
a drug trafficking offense in violation of 18 U.S.C. §
924(c). See United States v. Jennings, No.
2:05cr104-WHA (M.D. Ala. Dec. 1, 2005). For the reasons
that follow, Jennings's motion is due to be dismissed as
a successive section 2255 motion.
the second section 2255 motion filed by Jennings attacking
the judgment of conviction and sentence in Case No.
2:05cr104-WHA. Jennings filed her first section 2255 motion
in August 2012. See Jennings v. United States, Civil
Action No. 2:12cv715-WHA (M.D. Ala. Aug. 20, 2012) (Doc. #
1). On September 19, 2014, the court denied Jennings's
section 2255 motion and dismissed her action with prejudice
on grounds that the motion was time-barred under the one-year
limitation period in 28 U.S.C. § 2255(f). Id.
(Docs. # 6-8 (Recommendation of Magistrate Judge; Order
adopting Recommendation; and Final Judgment)).
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that, to file a second or
successive section 2255 motion in the district court, the
movant must first move in the appropriate court of appeals
for an order authorizing the district court to consider the
motion. See 28 U.S.C. § 2244(b)(3)(A). The
appellate court then must certify that the second or
successive section 2255 motion contains “(1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
bar on second or successive [section 2255] motions is
jurisdictional.” In re Morgan, 717 F.3d 1186,
1193 (11th Cir. 2013). A federal district court lacks
jurisdiction to consider a successive section 2255 motion
where the movant fails to obtain the requisite permission
from the appellate court to file a successive motion.
Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003). For purposes of the AEDPA's successive-motion
rules, the dismissal of an initial section 2255 motion as
untimely counts and renders a subsequent section 2255 motion
“successive.” See, e.g., Villanueva
v. United States, 346 F.3d 55, 58 (2d Cir. 2003)
(“We . . . hold that a first § 2255 petition that
has properly been dismissed as time-barred under AEDPA has
been adjudicated on the merits, such that authorization from
this court is required before filing a second or successive
§ 2255 petition.”); Altman v. Benik, 337
F.3d 764, 766 (7th Cir. 2003) (“We hold today that a
prior untimely petition does count [for purposes of 28 U.S.C.
§ 2244(b)] because a statute of limitations bar is not a
curable technical or procedural deficiency but rather
operates as an irremediable defect barring consideration of
the petitioner's substantive claims.”).
September 12, 2016, the government asserted that Jennings had
“failed to obtained the necessary certification from
the Eleventh Circuit” to file a successive section 2255
motion. (Doc. # 13, at 4.) On September 14, 2016, the court
entered an order directing Jennings to show cause why her
section 2255 motion “should not be dismissed as
successive and filed without Eleventh circuit
authorization.” (Doc. # 16, at 1.) Jennings did not
respond to the court's order.
has not provided the required certification from the Eleventh
Circuit, and there is no indication in the record that
Jennings has obtained the required certification authorizing
this court to consider her successive section 2255 motion.
Accordingly, this court lacks jurisdiction to consider
Jennings's present section 2255 motion, and the motion is
due to be dismissed for lack of jurisdiction. See,
e.g., Farris, 333 F.3d at 1216; Boone v.
Sec'y, Dep't of Corr., 377 F.3d 1315, 1317 (11th
on the foregoing, it is ORDERED that Petitioner's section
2255 motion is DISMISSED for lack of jurisdiction.
appropriate final judgment will be entered separately.