Boulette v. United States of America

Filing 4

MEMORANDUM OPINION. Signed by Judge R David Proctor on 10/15/2013. (AVC)

FILED
2013 Oct-15 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
PETER CHRISTIAN BOULETTE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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2:13-CV-08046-RDP
(2:06-CR-131-RDP-HGD)

MEMORANDUM OPINION
On October 10, 2013, Peter Christian Boulette, a federal prisoner acting pro se, filed a motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Civ. Doc. 1 (the “§ 2255
Mot.”)).1/ However, Boulette’s Section 2255 motion is his second one attacking his conviction, and
he does not claim to have an order from the United States Court of Appeals for the Eleventh Circuit
authorizing this court to consider the motion. Therefore, as explained below, Boulette’s Section
2255 motion (Civ. Doc. 1) is due to be denied without prejudice for want of jurisdiction, pursuant
to 28 U.S.C. § 2255(h).
Boulette’s instant Section 2255 motion attacks his 600-month prison sentence entered on
December 15, 2006, in case number 2:06-cr-131-RDP-HGD (Crim. Doc. 58). That sentence rests
on a jury verdict finding Boulette guilty of the following offenses: Count 1 - Possession with Intent
to Distribute Fifty (50) Grams or More of Methamphetamine; Counts 2 and 4 - Possession with
Intent to Distribute a Mixture and Substance Containing Methamphetamine; Counts 3 and 5 Possession of a Firearm in Furtherance of a Drug Trafficking Crime; and Count 6 - Felon in

1/

Citations herein to "Civ. Doc(s) ___" are to the document numbers assigned by the Clerk of the Court to the pleadings
and other materials in the instant "civil" case, initiated by the instant § 2255 motion, i.e., Boulette v. United States of
America, 2:13-CV-08046-RDP. Citations to "Crim. Doc(s) ___" are to the document numbers likewise assigned in the
underlying "criminal" case, United States v. Boulette, 2:06-cr-00131-RDP-HGD.

Possession of a Firearm. (Crim. Doc. 58). Boulette now seeks to contest that sentence based upon
Alleyne v. United States, 133 S.Ct. 2151 (U.S. June 17, 2013). In particular, he argues that, under
Alleyne, he was improperly subjected to an enhanced mandatory minimum sentence based on a prior
conviction which was not put to the jury in the criminal case in which he received the sentence at
issue.2/
Whatever the merits of such a claim, this court cannot now hear it. This court’s records show
that Boulette previously filed a Section 2255 motion in case number 2:09-CV-8004-RDP-HGD (the
“2009 Case”) attacking his conviction. (Crim. Doc. 73; Doc. 1 in the 2009 Case). On April 23,
2010, the court denied that Section 2255 motion. (See Docs. 9 and 11 in the 2009 Case). Boulette
appealed his 2009 case, but his motion for a certificate of appealability was denied. (See Doc. 16
in the 2009 Case).
Section 2255 provides in pertinent part:
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.
In turn, 28 U.S.C. § 2244(b)(3)(A) provides:

2/

Notably, Boulette “in fact, [] came into court and took the witness stand and admitted to the prior conviction.” (Crim.
Doc. 68 at 4). Further, a prior conviction was an element of the felon in possession count on which Boulette was found
guilty.

2

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.
In Burton v. Stewart, 549 U.S. 147, 157 (2007), the Supreme Court held, in the § 2254
context, that because a state prisoner did not receive authorization from the Court of Appeals before
filing his second challenge, “the District Court was without jurisdiction to entertain it.” In Farris
v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam), the Eleventh Circuit held in
the Section 2255 context:
Without authorization, the district court lacks jurisdiction to consider
a second or successive petition. See Hill v. Hopper, 112 F.3d 1088,
1089 (11th Cir. 1997). Because Farris did not have authorization
from this Court before filing his Rule 60(b) motion, the district court
did not err in denying his motion as an unauthorized successive §
2255 motion.
See also United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Boulette has previously filed a Section 2255 motion attacking his conviction. That motion
was denied, and that denial has long since become final. Boulette does not plead or otherwise
suggest that he has obtained an order from the Eleventh Circuit authorizing this court to consider a
second or successive Section 2255 motion. Without such an order, this court lacks jurisdiction to
consider Boulette’s present Section 2255 motion. Accordingly, that motion (Civ. Doc. 1) is due to
be denied without prejudice, for want of jurisdiction. A separate final order will be entered.
DONE and ORDERED this

15th

day of October, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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