United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
the court is the 28 U.S.C. § 2255 motion filed May 25,
2016,  by federal inmate Bernetta Lashay Willis
(“Willis”). Doc. # 1. In March 2007, a jury found
Willis guilty of conspiring to defraud the government (18
U.S.C. § 371) and multiple counts of theft of government
property and filing false claims (18 U.S.C. §§ 641
and 287) for submitting fraudulent applications for FEMA aid.
The jury also found Willis guilty of aggravated identity
theft (18 U.S.C. § 1028A(a)(1)), threatening a federal
witness (18 U.S.C. § 1512(a)(2)(A)), brandishing a
firearm during a crime of violence (18 U.S.C. §
924(c)(1)(A)(ii)), distributing marijuana (21 U.S.C. §
841(a)(1)), possessing a firearm in furtherance of a drug
trafficking crime (18 U.S.C. § 924(c)(1)(A)), and making
false statements to a U.S. Marshal (18 U.S.C. §
1001(a)(2)). In January 2008, the district court sentenced
Willis to 516 months in prison. See United States v.
Willis, Case No. 2:06cr71-MEF. In her § 2255
motion, Willis raises numerous claims of judicial misconduct,
trial error, and ineffective assistance of trial and
appellate counsel. In addition, she contends that the U.S.
Supreme Court's holding in Johnson v. United
States, 576 U.S., 135 S.Ct. 2551 (2015),  invalidates her
conviction for brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c))(1)(A). For
the reasons that follow, Willis's motion is due to be
dismissed as a successive § 2255 motion.
the third § 2255 motion filed by Willis attacking the
judgment of conviction and sentence in Case No. 2:06cr71-MEF.
Willis filed her first § 2255 motion in September 2009.
See Willis v. United States, Civil Action No.
2:09cv930 (Doc. # 1). On April 6, 2012, this court denied
Willis's § 2255 motion and dismissed her action with
prejudice. Id. (Doc. # 38, 40, and 41
(Recommendation of Magistrate Judge; Order Adopting
Recommendation; and Final Judgment)).
November 2015, Willis filed what she styled as a motion for
relief from judgment under Rule 60(b) of the Federal Rules of
Civil Procedure, which this court summarily dismissed as a
successive § 2255 motion filed without the required
appellate court authorization. See Willis v. United
States, Civil Action No. 2:15cv891-MHT ((Doc. # 1, 7, 9,
and 10). Alternatively, this court held that if Willis's
motion was treated, as styled, as a Rule 60(b) motion, it was
time-barred and without merit. Id.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that, to file a second or
successive § 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, in turn, must certify that the second or
successive § 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.” See 28 U.S.C. § 2255(h).
bar on second or successive [§ 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 § 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). Willis has not provided the required
certification from the Eleventh Circuit, and there is no
indication in the record that Willis has obtained the
required certification authorizing this court to consider her
successive § 2255 motion. Accordingly, this court lacks
jurisdiction to consider Willis's successive § 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. Secretary, Dept. of Corrections, 377 F.3d
1315, 1317 (11th Cir. 2004).
it is the RECOMMENDATION of the magistrate judge that the
§ 2255 motion be dismissed for lack of jurisdiction, as
Willis has failed to obtain the requisite order from the
Eleventh Circuit Court of Appeals authorizing this court to
consider a successive § 2255 motion.
that the parties shall file any objections to this
Recommendation or before February 2, 2018. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under the
provisions of 28 U.S.C. § 636(b)(1) will bar a party
from a de novo determination by the District Court
of legal and factual issues covered in the Recommendation and
waives the right of the party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice.
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982);
11th Cir. R. 3-1. See Stein v. Lanning Securities,
Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner
v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en