Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toyer v. United States

United States District Court, N.D. Alabama, Eastern Division

July 22, 2019

MARK ANTHONY TOYER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS SENIOR UNITED STATES DISTRICT JUDGE.

         I. Introduction

         The 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).[1] 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).

         II. Arguments Asserted

         Petitioner 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 raised.

         A. Lack of Opportunity To Respond

         Petitioner's 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.

         B. Second-in-Time but Not Successive

         Petitioner's 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 that analysis.

         AEDPA 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.[2] 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. § 2244.

         To 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. “The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.