Nunn v. United States of America et al (INMATE 3)

Filing 3

OPINION. Signed by Honorable Judge Myron H. Thompson on 12/8/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
TYRONE NUNN, SR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO.
3:16cv925-MHT
(WO)

OPINION
Through a pro se pleading styled as a “Petition for
Writ of Habeas Corpus” (doc. no. 2.), Tyrone Nunn, Sr.
challenges his 2009 controlled substance convictions.1
Nunn asserts, as he has similarly asserted in numerous
previous attacks on his convictions, that this court
had

no

petition

jurisdiction
constitutes

in
a

his

criminal

successive

case.

motion

for

Nunn’s
relief

1. See Criminal Case no. 3:08cr28-MHT.
Nunn pled
guilty to two counts of possession with intent to
distribute crack cocaine. On July 1, 2009, he was
sentenced to 210 months in prison.
He later received
two sentence reductions under 18 U.S.C. § 3582(c)(2)
based on retroactive amendments to the sentencing
guidelines.
The second of those reductions was
effected in January 2016 and reduced his sentence to
125 months in prison. See Criminal Case No. 3:08cr28MHT, doc. nos. 246 & 247.

under

28

U.S.C.

§ 2255

and

is

subject

to

summary

dismissal.
Nunn

attacks

convictions

in

the

fundamental

Criminal

Case

legality
No.

of

his

3:08cr28-MHT.

Therefore, he seeks relief appropriate only under 28
U.S.C. § 2255.
(2005).

See Gonzalez v. Crosby, 545 U.S. 524

No matter how Nunn has labeled his filing,

this court finds that his petition 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.
624-25

See United States v. Jordan, 915 F.2d 622,
(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,

statutory

cognizable

framework”).

under
This

a
is

different
at

least

remedial
the

tenth

§ 2255 motion filed by Nunn attacking his convictions
and sentence in Criminal Case No. 3:08cr28-MHT.2

2. A recounting of Nunn’s first seven § 2255
motions is set forth in the Recommendation of the
Magistrate Judge addressing his eighth § 2255 motion in
2

The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that, to file a second or successive
§ 2255 motion in the district court, the movant must
first move in the appropriate court of appeals for an
order authorizing the district court to consider the
motion.
court,

See 28 U.S.C. § 2244(b)(3)(A).
in

turn,

must

certify

that

The appellate
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

Supreme Court, that was previously unavailable.”
28

U.S.C.

jurisdiction

§
to

2255(h).
consider

A
a

district

successive

the
See

court

lacks

§ 2255

motion

where the movant fails to obtain permission from the

Civil Action No. 3:14cv61-MHT, doc. no. 3 at 2-5. See
also Civil Action No. 3:14cv254-MHT (Nunn’s ninth
§ 2255 motion).
3

appellate court to file a successive motion.

Farris v.

United States, 333 F.3d 1211, 1216 (11th Cir. 2003);
Carter v. United States, 405 Fed. App’x 409, 410 (11th
Cir. 2010).
Nunn furnishes no certification from the Eleventh
Circuit

Court

of

Appeals

authorizing

this

proceed on his successive § 2255 motion.

court

to

In light of

the requirements of § 2255(h) and the absence of the
required certification, this court lacks jurisdiction
to proceed on Nunn’s § 2255 motion.3

See Farris, 333

F.3d at 1216.

3. Nunn received two sentence reductions under 18
U.S.C. § 3582(c)(2) after his July 2009 sentencing.
For purposes of Magwood v. Patterson, 561 U.S. 320
(2010), and the rules pertaining to successive § 2255
motions, a sentence reduction under § 3582(c)(2) does
not constitute a genuine resentencing or give rise to a
new judgment.
See United States v. Jones, 796 F.3d
483, 485-87 (5th Cir. 2015); Murphy v. United States,
634 F.3d 1303, 1313-14 (11th Cir. 2011)(specifically
discussing
sentence
reduction
under
Fed.R.Crim.P.
35(b), § 3582(b), and one-year limitations clock in §
2255(f)); White v. United States, 745 F.3d 834, 836-37
(7th Cir. 2014). See also Dillon v. United States, 560
U.S. 817, 825-30 (2010).
4

An appropriate judgment will be entered.
DONE, this the 8th day of December, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE