United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge.
Marcus Rashawn Smith is a prisoner in federal custody
proceeding pro se. Before the court is Smith's
motion with the heading, “The United States District
Court, Middle District, of Alabama Lacked Subject Matter
Jurisdiction, Because the Government Failed to Allege and
Prove, as a Prerequisite, a Dangerous Weapon or Device,
Pursuant to Title 18, United States Code Section 2113(a),
(d).” Doc. No. 2. For the reasons discussed below, the
court finds that Smith's motion constitutes a successive
§ 2255 motion filed without the required authorization
of the Eleventh Circuit Court of Appeals. Therefore, the
motion should be dismissed for this court's lack of
April 2007, Smith pled guilty to two counts of bank robbery,
in violation of 18 U.S.C. § 2113(a) (Counts 1 and 4);
two counts of brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Counts 2 and 5); and two counts of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)
(Counts 9). The two bank robberies served as the predicate
“crimes of violence” for Smith's two §
924(c) convictions. After a sentencing hearing on March 21,
2008, the district court sentenced Smith to 430 months in
prison, consisting of 46 months on Counts 1, 3, 4, and 6, to
be served concurrently with each other; 300 months on Count
5, to be served consecutively to the terms imposed on Counts
1, 3, 4, and 6; and 84 months on Count 2, to be served
consecutively to the terms imposed on Counts 1, 3, 4, and 6.
Smith did not appeal.
31, 2016, Smith filed a 28 U.S.C. § 2255 motion with
this court arguing that, in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), his bank robbery convictions did not qualify as
predicate “crimes of violence” for his §
924(c) convictions, and therefore his convictions and
sentence under § 924(c) were invalid. See Smith v.
United States, Civil Action No. 2:16cv394-WKW. The
magistrate judge entered a recommendation that the §
2255 motion should be denied, see id., Doc. No. 18,
and on September 28, 2018, the district judge adopted the
recommendation, with modifications, and entered a judgment
denying Smith's § 2255 motion and dismissing the
case with prejudice. See id., Doc. Nos. 24 & 25.
Smith's appeal from the denial of his § 2255 motion
is pending in the Eleventh Circuit Court of Appeals.
filed his instant motion (Doc. No. 2) on July 16, 2019.
instant motion, Smith claims that the indictment in his case
was fatally defective because it failed to allege all the
essential elements of the bank robbery offenses he was
charged with. See Doc. No. 2. He argues that, as a
consequence, the district court lacked subject matter
jurisdiction to enter a judgment of conviction against him.
Id. He maintains that his convictions should be
vacated and the indictment against him should be dismissed.
claims attack the legality of his conviction and sentence in
this court. The law directs that 28 U.S.C. § 2255 is the
exclusive remedy for a federal prisoner to collaterally
attack a conviction and/or sentence imposed by a federal
court. See 28 U.S.C. § 2255(a) & (e);
United States v. Holt, 417 F.3d 1172, 1174-75 (11th
Cir. 2005); Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996). Where a district court has adjudicated a
prior § 2255 motion and entered judgment, a motion
asserting a new claim challenging a conviction or sentence is
successive. See Beaty v. Schriro, 554 F.3d 780, 783
n.1 (9th Cir. 2009); Aird v. United States, 339
F.Supp.2d 1305, 1309-10 (S.D. Ala. 2004); Keeton v.
Bradshaw, 2007 WL 142056 (N.D. Ohio 2007). Accordingly,
regardless of Smith's labeling of his instant motion, the
court finds that his motion is of the same legal effect
as-and should be construed as-a motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. See
United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir.
1990) (federal courts have “an obligation to look
behind the label of a motion filed by a pro se inmate and
determine whether the motion is, in effect, cognizable under
a different remedial statutory framework”).
Antiterrorism and Effective Death Penalty Act of 1986
(“AEDPA”) provides that to file a second or
successive § 2255 motion in the district court, the
movant must first move in the 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 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). A district court lacks
the jurisdiction to consider a successive § 2255 motion
where the movant fails to obtain permission from the
appellate court to file a successive motion. See, e.g.,
Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.
2003); Holt, 417 F.3d at 1175.
has not obtained authorization from the Eleventh Circuit
Court of Appeals to file a successive § 2255 motion.
This court therefore lacks jurisdiction to consider the
merits of his instant motion, and the motion should be
dismissed on this ground. Farris, 333 F.3d at 1216.
it is the RECOMMENDATION of the Magistrate Judge that
Smith's instant motion (Doc. No. 2), which
constitutes a successive § 2255 motion, be DISMISSED
because Smith has not received permission from the appellate
court to file a second or successive § ...