United States District Court, N.D. Alabama, Middle 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 [hereinafter Motion to
Vacate], filed by petitioner, Eric Jawayne Daniels. (Doc. 1;
crim. doc. 72.) This is Daniels's third habeas
petition attacking his conviction and sentence in his
criminal case. (See crim. docs. 59, 67, 72.) He does
not have authorization from the Eleventh Circuit to file the
instant Motion; therefore, the court is without jurisdiction.
The court finds that Daniels's Motion to Set Aside is due
to be denied and this case is due to be dismissed.
§ 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).
“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.” 28 U.S.C. § 2244(b)(3)(A). Such
authorization may be granted only if the Circuit Court
certifies that the second or successive Motion to Vacate
contains a claim involving:
(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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). “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)).
November, 2008, the grand jury returned a four-count
Indictment charging Daniels with violations of: (1) 18 U.S.C.
§ 371 (conspiracy to commit bank robbery), (2) 18 U.S.C.
§§ 2113(a) and (d) (armed bank robbery), (3) 18
U.S.C. § 924(c)(1)(A) (brandishing a firearm during a
crime of violence), and (4) 18 U.S.C. § 922(g)(1)
(possession of a firearm by a convicted felon). In February,
2009, Daniels entered into a plea agreement with the
government and pleaded guilty to all four counts. He was
sentenced to a total of 245 months as to these offenses; the
court subsequently reduced his custodial sentence to 180
months for reasons unrelated to his motions to vacate.
Daniels did not file a direct appeal.
June, 2010, Daniels filed his first motion for relief
pursuant to 28 U.S.C. § 2255, alleging ineffective
assistance of counsel. See generally Daniels v. United
States, Case No. 4:10-CV-8034-SLB. That Motion was
denied on the merits and Daniels did not appeal. Daniels
filed his second Motion to Vacate on June 26, 2014. See
generally Daniels v. United States, Case No.
4:14-CV-8038-SLB. That Motion was denied without prejudice
and Daniels was instructed to seek permission from the
Eleventh Circuit Court of Appeal to file a second or
successive Motion to Vacate. Although Daniels sought
permission to file a second Motion to Vacate, the Eleventh
Circuit denied his application. See In re: Eric
Daniels, No. 16-13270-J (11th Cir. June 27,
2016)(denying Daniels's application “because [he]
failed to make a prima facie showing of the existence of
either of the grounds set forth in 28 U.S.C. §
2255”). Daniels filed another application with the
Eleventh Circuit; this application was also denied. See
In re: Eric Daniels, No. 16-165323-J (11th Cir. Nov. 3,
2016)((denying Daniels's application, in part,
“because he raises the same claim in the instant
application that was raised and rejected in a prior
application, ” and because the cases he relied upon did
not “announce a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme
Daniels has previously filed two § 2255 habeas petitions
- the second of which was denied because Daniels did not have
prior authorization to file a second Motion to Vacate, he is
required to have authorization from the Eleventh Circuit
before this court may consider his third Motion to Vacate. As
Daniels does not have such authorization, his current Motion
to Vacate will be denied, without prejudice to his right to
file his Motion after receiving authorization from the
foregoing reasons, the court is of the opinion that it lacks
jurisdiction to determine Daniels's Motion to Vacate. An
Order denying Daniels's Motion to Vacate and dismissing
this case will be entered contemporaneously with this
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 Daniels's third
habeas petition without authorization from the Eleventh
Circuit Court of Appeals. Reasonable jurists could not
disagree. Therefore, issuance of ...