Moody v. United States of America (INMATE 3)
MEMORANDUM OF OPINION. Signed by Honorable L. Scott Coogler on 8/3/16. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICKEY LEE MOODY,
UNITED STATES OF AMERICA
MEMORANDUM OF OPINION
The Court has before it Petitioner Mickey Lee Moody’s (“Moody”) Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.)
The Government has responded in opposition to this motion. (Doc. 7.) For the
reasons stated below, the motion is due to be denied.
On September 8, 2005, Moody was charged with one count of possession of
a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), with penalties
at 18 U.S.C. § 924(e)(1). He pled guilty to that count on April 10, 2006. The
Presentence Investigation Report (“PSR”) recommended that Moody’s sentence
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be enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
922(g), because it concluded that he had at least three prior convictions for
“violent felonies” that were committed on occasions different from one another.
The PSR classified the following Florida and Alabama convictions as either serious
drug offenses or “violent felonies:”
Florida burglary of a dwelling (PSR, ¶¶ 21, 32);
Alabama burglary, 3rd degree (id. ¶¶ 21, 33);
Alabama, serious drug offense (conspiracy to violate the
controlled substance act; smuggling marijuana into the United States)
(id. ¶¶ 21, 39).
On September 7, 2006, this Court sentenced Moody to the ACCA
minimum—a 180-month term of imprisonment. The Court also ordered a 36month term of supervised release upon his release from imprisonment. Moody
appealed, and the Eleventh Circuit Court of appeals affirmed Moody’s convictions
and sentence. Moody filed a motion pursuant to § 2255 on January 21, 2008.
(Docketed in Civil Case No. 1:08-cv-00063-MHT.) The Court denied that motion
on the merits on April 15, 2010. Moody appealed and that appeal was denied by the
Eleventh Circuit in Case No. 10-13597-D. Moody filed the instant § 2255 motion
on May 23, 2016.
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This is Moody’s second motion filed pursuant to § 2255, and it is due to be
denied for lack of jurisdiction. 28 U.S.C. § 2255(h) requires Moody to follow the
procedures of 28 U.S.C. § 2244(b)(3)(A), which states, “Before a second or
successive application permitted by this section 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.” While Moody received authorization to
file a second or successive petition after he filed the instant motion, the statutory
language, requiring authorization before filing the petition, requires this Court to
dismiss this motion for lack of jurisdiction.1
For the foregoing reasons, Moody’s § 2255 motion is due to be denied.
Additionally, this Court may issue a certificate of appealability “only if the
application has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must demonstrate
that reasonable jursits would find the district court’s assessment of the
constitutional claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to
Further, to the extent that this Court would have jurisdiction over the instant petition through
the later-granted authorization, Moody’s claims are moot as this Court has granted the relief to
which Moody was authorized to seek in a separate action. (Civil Case No. 1:16-cv-00458-LSCSRW.)
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proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This Court finds
that Moody’s claims do not satisfy either standard. Accordingly, insofar as an
application for a certificate of appealability is implicit in the defendant’s motion, it
is due to be denied.
A separate closing order will be entered.
DONE and ORDERED on August 3, 2016.
L. Scott Coogler
United States District Judge
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