United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS SENIOR UNITED STATES DISTRICT JUDGE.
undersigned has received a Motion for Reconsideration (doc.
3) of its Order (doc. 2) denying Petitioner's fourth
Motion under 28 U.S.C. § 2255 To Vacate, Set Aside, or
Correct a Sentence by a Person in Federal Custody (doc. 1)
(the “Fourth § 2255 Petition”). As the Court
noted in its Order, Petitioner invoked Johnson v. United
States, 135 S.Ct. 2551 (2015), as the basis for the
relief sought. (See doc. 2 at 1). He alleged that
“the District Court erred in determining that Toyer was
an ACCA offender within the meaning of USSG
§4B1.4.” (Doc. 1 at 6). Specifically,
Petitioner's Fourth § 2255 Petition was based on his
argument that, after he was sentenced, the United States
announced a new substantive rule of constitutional law in
Johnson, 135 S.Ct. at 2563, that was expressly made
retroactive in Welch v. United States, 136 S.Ct.
1257, 1265 (2016). (See doc. 1 at 6-13). As the
Court noted (see doc. 2 at 1 n.2), it had already
denied on the merits Petitioner's Third § 2255
Petition, which was also based on Johnson. The Court
took judicial notice that Petitioner had not demonstrated
that he had permission from the Eleventh Circuit Court of
Appeals to file this successive Fourth § 2255
Petition, and, in accordance with the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), denied the
Fourth § 2255 Petition for lack of jurisdiction.
(See Id. at 1-3).
asserts two arguments that merit discussion. Petitioner first
argues that this Court's Order was in error
“because it failed to give [Petitioner] an opportunity
to respon[d].” (Doc. 3 at 2) (citing Castro v.
United States, 540 U.S. 375 (2003)). Second, Petitioner
argues that his Fourth § 2255 Petition is second-in-time
but, nonetheless, “not successive.” (Id.
at 3). The Court will address these arguments in the order
Lack of Opportunity To Respond
first argument is based on Cast ro, 540 U.S. 375,
which held, as Petitioner states, that “a federal court
cannot recharacterize a pro se litigant's motion as a
first § 2255 motion unless [the court] first informs the
litigant of its intent to recharacterize, warns the litigant
that this recharacterization means that any subsequent §
2255 motion will be subject to the restrictions on
‘second or successive' motions, and provides the
litigant an opportunity to withdraw the motion or to amend it
so that it contains all the § 2255 claims he believes he
has.” (Doc. 3 at 2-3); see Castro, 540 U.S. at
383. However, Castro does not apply to the Fourth
§ 2255 Petition dismissed by this Court's Order, as
the Fourth § 2255 Petition was not recharacterized as a
first § 2255 motion. See Castro, 540
U.S. at 383 (“The limitation applies when a court
recharacterizes a pro se litigant's motion as a
first § 2255 motion.”); (doc. 2 at 2) (treating
Petitioner's Fourth § 2255 Petition as a
“second or successive § 2255 motion”).
Petitioner's first argument accordingly fails.
Second-in-Time but Not Successive
second argument is that, although the Fourth § 2255
Petition is not his first (and thus is
“second-in-time”), it nonetheless is not
successive. (See doc. 3 at 3) (citing Stewart v.
United States, 646 F.3d 856, 858 (11th Cir. 2011)).
Petitioner is correct that not all second-in-time § 2255
motions are barred as successive. See,
e.g., Stewart, 646 F.3d at 865. In this
section of this opinion, the Court will first set out the
standard upon which its analysis relies. It will then apply
dramatically limits habeas relief, including the requirement
that any second or successive habeas petition be certified by
a panel of the appropriate court of appeals before a district
court may consider it. Specifically, AEDPA provides in relevant
part as follows:
(h) A second or successive motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain--
(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), referencing 28 U.S.C.
support his second argument, Petitioner relies upon St
ewart, 646 F.3d 856. (See doc. 3 at 3-4)
(citing Stewart, 646 F.3d at 858-60, 863-65). In
that case, a federal prisoner who was sentenced as a career
offender sought, immediately after sentencing, and ultimately
obtained vacatur by the Georgia Supreme Court of his Georgia
state convictions which were the offenses triggering his
federal career offender enhancement. See Stewart,
646 F.3d at 857-58. The month after such vacatur, he filed a
second § 2255 petition, “requesting vacatur of his
career offender enhancement.” Id. at 858. In
that petition, Stewart relied upon the Supreme Court's
decision in Johnson v. United States, 544 U.S. 295
(2005). See Stewart, 646 F.3d at 858. The district
court dismissed the petition, concluding that it was
successive because Stewart's first § 2255 petition
was “decided adversely to him.” Id.