United States District Court, N.D. Alabama, Eastern Division
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE
Jarvis Lamar Mims has asked the court to set aside his
conviction based on the recent Supreme Court case Rehaif
v. United States, 139 S.Ct. 2191 (2019). (Doc. 39.) Mims
has previously filed a § 2255 Motion to Vacate attacking
his conviction and sentence. (See doc. 38.)
2244(a) states, “No . . . district judge shall be
required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
2255.” 28 U.S.C. § 2244(a). Section 2255(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;
(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)(emphasis added). “Before a
second or successive application permitted by [§ 2244]
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.”
Id. (b)(3)(A). “[Section] 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). “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)).
Mims must receive permission to file a second or successive
Motion to Vacate before this court has jurisdiction to
consider such Motion. See 28 U.S.C. § 2255(h).
The court deems Mims's request to set aside his
conviction a second and successive Motion to Vacate. Nothing
in this Motion indicates that he has permission from the
Eleventh Circuit to proceed. Therefore, this court is without
jurisdiction to consider his request, which will be denied.
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 decide Mims's Motion to
Vacate without authorization from the Eleventh Circuit Court
of Appeals. Reasonable jurists could not disagree. Therefore,
issuance of a certificate of appealability is not warranted
in this case.
“[The] absence of jurisdiction
altogether deprives a federal court of the power to
adjudicate the rights of the parties.” Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005)(citing Steel Co. v.
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