United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Gareth Perry's
(“Perry”), “Letter of Memorandum Requesting
First Step Act Relief” seeking a reduction of his
sentence pursuant to the First Step Act and habeas relief due
to violations of the 4th, 5th,
8th, and 14th Amendments of the United
States Constitution. (Doc. 58). After consideration of the
petition and for the reasons set forth hereinbelow, the
motion is DENIED as to Perry's relief pursuant to the
First Step Act and DISMISSED as to Perry's constitutional
claims for lack of jurisdiction.
was indicted on September 24, 2014, for robbery under the
Hobbs Act, 18 U.S.C. § 1951(a)(counts one and three),
and brandishing a firearm during and in relation to a crime
of violence, in violation of the Armed Career Criminal Act
(“ACCA”), 218 U.S.C. § 924(c) (counts two
and four). (Doc. 1). Perry entered into a plea agreement with
the Government. (Doc. 26). He pled guilty to counts one and
two, and the Government agreed to dismiss counts three and
four. (Docs. 27, 40). Perry was sentenced to 30 months'
imprisonment on count one, and 84 months' imprisonment on
count two, for a total of 114 months' imprisonment. (Doc.
40). He did not appeal. Perry filed his first petition
seeking habeas relief under 28 U.S.C. § 2255, and an
amendment, in 2016. (Docs. 43, 45). He asserted that his
robbery conviction should be vacated because it no longer
qualified as a crime of violence. (Doc. 45 at 4, 12). In an
order dated July 5, 2016, the Court denied Perry's
petition for habeas relief and dismissed his petition with
prejudice. (Doc. 46). A final judgment issued on the same
date. (Doc. 47).
January 19, 2018, Perry filed his second federal petition
seeking habeas relief. (Doc. 50). In the second petition,
Perry sought habeas relief on various grounds, including: (1)
that his federal trial counsel was ineffective for failing to
request evidentiary hearings to support a motion to suppress
evidence, in violation of his Fourth, Sixth, and Eighth
Amendment rights (id. at 2); and (2) that his federal trial
counsel told him that his state case would be dropped if he
accepted a federal plea agreement. (Id. at 3). In a
Report and Recommendation dated January 29, 2018, it was
recommended that Perry's second habeas petition be denied
as successive under 28 U.S.C. § 2255(h) because he had
not obtained permission from the Eleventh Circuit Court of
Appeals before filing the petition. (Doc. 51). The Report and
Recommendation was adopted by the undersigned on March 13,
2018, and a final judgment issued on the same date. (Docs.
4, 2018, Perry filed another motion, again seeking habeas
relief under 28 U.S.C. § 2255. (Doc. 54) based on the
Supreme Court's recent ruling in Sessions v.
Dimaya, 584 U.S. ___, 138 S.Ct. 1204, 200 L.Ed.2d 4189
(2018), and the Tenth Circuit's ruling in United
States v. Salas, 889 F.3d 681 (10th Cir.
2018).In a Report and Recommendation dated July
19, 2018, the Magistrate Judge recommended that Perry's
habeas petition be denied as successive under 28 U.S.C.
§ 2255(h) because he had not obtained permission from
the Eleventh Circuit Court of Appeals before filing the
petition. (Doc. 55). The Report and Recommendation was
adopted by the undersigned on June 6, 2019, and a final
judgment issued on the same date. (Docs. 60, 61). Prior to
the adoption of the Report and Recommendation and
corresponding judgment, Perry filed the instant motion
entitled “Letter of Memorandum Requesting First Step
Act Relief”. (Doc. 58). Therein, Perry states
“that he would like to notify the Court that he seeks
to have his sentenced reduced due to new Act being
invoked.” (Id.) Attached to Perry's motion
is an “Affidavit of Truth Demanding Relief of Sentence
due to Double Jeopardy violations, and Constitution Violation
of the 4th, 5th, 8th, and
14thAmendment”. (Id. at 3). The
affidavit is approximately four pages in length, details the
history of his case, and seeks habeas relief. (Id.
Fair Sentencing Act of 2010 (“Fair Sentencing
Act”) was passed to reduce the disparity in treatment
of cocaine base and powder cocaine offenses. See Dell v.
United States, 710 F.3d 1267, 1271 (11th Cir. 2013)
(acknowledging disparity). It was made retroactively
applicable by the passage of the First Step Act in 2018.
Section 404(b) of the First Step Act of 2018 expressly
permits the Court to “impose a reduced sentence as if
sections 2 or 3 of the Fair Sentencing Act of 2010 ... were
in effect at the time the covered offense was
committed.” Pub. L. No. 115-391, 132 Stat. 5194.
Section 2 of the Fair Sentencing Act expressly increased the
amount of crack cocaine necessary to invoke the mandatory
minimum sentences and the statutory maximum sentences under
Section 841(b); Section 3 eliminated the mandatory minimum
sentence for simple possession of crack cocaine. Pub. L. No.
111-220; 124 Stat. 2372.
authority of a district court to modify an imprisonment
sentence is narrowly limited by statute.” United
States v. Phillips, 597 F.3d 1190, 1194 (11th Cir.
2010). The First Step Act does not cite 18 U.S.C. §
3582(c). However, § 3582(c) provides the procedural
vehicle through which this Court may modify Defendant's
sentence. See United States v. Maiello, 805 F.3d
992, 999-1000 (11th Cir. 2015) (stating that a court may
modify a final sentence only when one of the limited
exceptions in § 3582(c) applies). When the district
court considers a § 3582(c)(2) motion, it must apply a
two-step approach. Dillon v. United States, 560 U.S.
817, 826 (2010). First, the court must determine if the
defendant is eligible for relief under § 3582(c)(2), and
if so, determine the “amended guideline range that
would have been applicable to the defendant had the relevant
amendment been in effect at the time of the initial
sentencing.” Id. at 827 (quotation omitted).
The court must then decide whether to exercise its discretion
to impose the newly calculated sentence under the amended
Guidelines or retain the original sentence by considering the
§ 3553(a) factors. Id.
only portion of the First Step Act that expressly permits a
Court to reduce a previously-imposed sentence is Section 404,
which allows (but does not require) courts to retroactively
apply certain portions of the Fair Sentencing Act regarding
the statutory penalties for offenses involving cocaine base.
Upon review, Defendant is not eligible for relief under the
First Step Act because he was not convicted of a
“covered offense.” Rather, the record reflects
that this Court sentenced Defendant to prison based upon his
conviction for Hobbs Act Robbery and brandishing a firearm
during and in relation to a crime of violence, in violation
of the ACCA. As such, Section 404 of the First Step Act does
not permit this Court to modify his sentence.
the Court is not at liberty to address constitutional claims
under the auspice of 18 U.S.C. § 3582. See United
States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)
(holding that constitutional claims are “extraneous
resentencing issues” that a court cannot address during
a § 3582(c)(2) proceeding, and that a defendant is
entitled to raise constitutional challenges to a sentence by
making a collateral attack under 28 U.S.C. § 2255);
United States v. Saintil, 536 Fed.Appx. 902, 905
(11th Cir. 2013) (“Saintil's arguments on appeal
that the district court abused its discretion by declining to
appoint him appellate counsel and that failing to apply the
reduced statutory minimums from the FSA violates the Equal
Protection Clause are squarely foreclosed by our
precedent.”). As such, all of the constitutional claims
asserted by Perry must be made through a collateral attack
under § 2255. Further, because Perry has previously
filed a § 2255 petition, he must first seek and obtain
certification “[b]efore a second or successive
application. . . is filed in the district court.” 28
U.S.C. § 2244(b)(3)(A); see also Rule 9 of the
Rules Governing § 2255 Habeas Cases (“Before
presenting a second or successive motion, the moving party
must obtain an order from the appropriate court of appeals
authorizing the district court to consider the motion, as
required by 28 U.S.C. § 2255, para. 8.”).
“Failure to petition [the court of appeals] for
permission to file a successive § 2255 motion leaves the
district court without jurisdiction to rule on the successive
§ 2255 motion and the motion should be dismissed.”
Lazo v. United States, 314 F.3d 571, 574 (11th Cir.
2002), vacated on other rounds sub nom. Gonzalez
v. Sec'y for the Dep't of Corr., 326 F.3d 1175
(11th Cir. 2003), superseding opinion, 366 F.3d1253 (11th
Cir. 2004) (en banc); see also United States v.
Holt, 417F.3d 1172, 1175 (11th Cir. 2005) (per curiam)
(“Without authorization, the district court lacks
jurisdiction to consider a second or successive
petition.”); Allen v. United States, 2012 U.S.
Dist. LEXIS 73734 (S.D. Ala. Apr. 6, 2012). Because Perry has
not sought leave to file a second or successive §2255
raising any of the constitutional claims asserted in the
instant motion, this Court lacks jurisdiction over those
CERTIFICATE OF APPEALABILITY
to Rule 11(a) of the Rules Governing § 2255 Proceedings,
a certificate of appealability in this case is DENIED. 28
U.S.C. § 2255, Rule 11(a) (“The district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”). The
habeas corpus statute makes clear that an applicant is
entitled to appeal a district court's denial of his
habeas corpus petition only where a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. §
2253(c)(1). A certificate of appealability may be issued only
where “the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
habeas petition is being denied, in part, on procedural
grounds without reaching the merits of an underlying
constitutional claim, “a COA should be issued [only]
when the prisoner shows . . . that jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 146
L.Ed.2d 542 (2000). Where a habeas petition is being denied
on the merits of an underlying constitutional claim, a
certificate of appealability should be issued only when the
petitioner demonstrates “that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Id.
(“To obtain a COA under § 2253(c), a habeas
prisoner must make a substantial showing of the denial of a
constitutional right, a demonstration that, under
Barefoot [v. Estelle, 463 U.S. 880, 893,
103 S.Ct. 3383, 3394 77 L.Ed.2d 1090 (1983)], includes
showing that reasonable jurists could debate whether (or, for