Tubbs v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/29/2016. (JLC)
2016 Mar-29 PM 03:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JEFFERY DION TUBBS,
UNITED STATES OF
Case No.: 2:15 -CV-8022-VEH
Jeffrey Dion Tubbs (hereinafter the “Tubbs” or the “defendant”) initiated the
present action on September 23, 2015, by filing a pro se motion to vacate, set aside, or
correct his conviction and sentence pursuant to 28 U.S.C. §2255. (Doc.1; the
"Motion"). The Motion was filed pursuant to 28 U.S.C. § 2255 and was predicated
upon the new rule announced in Johnson v. United States, 135 S. Ct. 2551 (2015).
Pursuant to an order of this court, on December 2, 2015, the Federal Public Defender
for this district entered an appearance on behalf of Tubbs. On that same day, the
Government filed a Response (doc. 9) to the Motion.
In its Response, the Government asserted that this is Tubbs's third motion under
Section 2255, that it has been brought without permission of the Eleventh Circuit Court
of Appeals, and that, accordingly, this court lacks jurisdiction.
On February 12, 2016, Tubbs, through counsel, filed his Reply (doc. 11) to the
Government's Response. In that Reply, Tubbs acknowledged his two prior Section
2255 cases, that the Eleventh Circuit has not given him permission to file the instant
Motion, and that such prior permission is mandatory. (Id.). Tubbs asks this court to
"dismiss the instant motion without prejudice or, in the alternative, stay the case." (Id.
Having reviewed the parties' pleadings and the arguments made therein, as well
as the applicable law pertaining thereto, the undersigned finds that this court lacks
jurisdiction to proceed. “[A] second or successive [§ 2255] motion must be certified
as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C.
§ 2255(h). See also 28 U.S.C. § 2244(b)(3)(A). Darby v. Hawk–Sawyer, 405 F.3d
942, 944–45 (11th Cir.2005); Farris v. U.S., 333 F.3d 1211 (2003) (same); United
States v. Harris, 546 Fed. Appx. 898, 900 (11th Cir.2013) (unpublished opinion) (“A
district court lacks the jurisdiction to hear a second or successive § 2255 motion absent
authorization from a court of appeals.”) (citations omitted).
Because this court lacks jurisdiction to entertain the instant § 2255 Petition, this
case will be dismissed without prejudice to allow Tubbs the opportunity to seek
authorization from the Eleventh Circuit to file a second or successive § 2255 motion.
Tubbs's counsel is well aware of the need for, and procedures governing obtaining,
such permission. (See doc. 11).
ACCORDINGLY, it is ORDERED that:
1. The pending motion to vacate, set aside, or correct sentence (Doc. 1) is
DISMISSED, without prejudice, for lack of jurisdiction.
2. The Clerk is directed to term all pending motions within this case file and the
associated criminal case, United States v. Tubbs, 2:08-CR-310-VEH.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Tubbs is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (“COA”). Id. “A [COA] may issue
... only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(2). To make such a showing, a petitioner “must demonstrate
that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.’ “ Miller–El v. Cockrell, 537
U.S. 322, 335–36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
When a district court dismisses a federal habeas petition on procedural grounds without
reaching the underlying constitutional claim, a COA should issue only when a petitioner
shows “that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484. Because the instant motion is clearly a successive § 2255 motion, Tubbs
cannot make the requisite showing in these circumstances. Finally, because Tubbs is
not entitled to a COA, he is not entitled to appeal in forma pauperis.
DONE and ORDERED this the 29th day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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