Jackson v. United States of America

Filing 6

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/23/2016. (JLC)

FILED
2016 Mar-23 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAWANA KESHUN JACKSON,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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Case No.: 2:16 -CV-8013-VEH
(2:09-CR-453-VEH)

MEMORANDUM OPINION
PROCEDURAL BACKGROUND AND HISTORY
The movant, Jawana Keshun Jackson, was convicted in this court on
February 2, 2010, on her plea of guilty to one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d) (Count 1) and one count of discharging a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(iii) (Count 2). Pursuant to the plea agreement, Jackson waived her
right to appeal or to seek post-conviction relief.
Jackson was sentenced on November 4, 2010, to a term of imprisonment for
a total of 166 months, to be followed by a 60-month term of supervised release.
Judgment was entered on November 5, 2010. Jackson did not appeal the
conviction or sentence.

On March 28, 2012, Jackson filed a § 2255 motion to vacate, set aside, or
correct the sentence. Jackson v. United States, 2:12-cv-8014-VEH-RRA. The
motion to vacate was denied and dismissed on June 6, 2012, as being untimely
filed.
Jackson filed a second challenge to her conviction and sentence on August
2, 2012. Jackson v. United States, 2:12-cv-8030-VEH-RRA. Although she entitled
the challenge a “Motion for Sentence Reduction via Rule 60(b),” it was docketed
as a § 2255 motion to vacate because Jackson admitted in the motion that she
sought to challenge her conviction and sentence via Rule 60(b) because she was
barred by the statute of limitations from challenging it in a § 2255 motion to
vacate. The court denied the motion on April 18, 2013, finding that, to the extent
the motion was filed pursuant to Rule 60(b), it was due to be denied because this
court does not have jurisdiction in a criminal case to hear motions filed pursuant to
Rule 60(b), and, to the extent it was filed pursuant to § 2255, it was due to be
denied because this court does not have jurisdiction to consider a successive §
2255 motion in the absence of authorization from the Eleventh Circuit Court of
Appeals, as required by 28 U.S.C. § 2244(b)(3)(A). Jackson filed a notice of
appeal on May 10, 2013. The Eleventh Circuit Court of Appeals dismissed
Jackson’s appeal on August 21, 2013, for failure to prosecute.
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On September 19, 2013, Jackson filed a“Motion for Leave to File a
Supplement to the Motion to Proceed under a Habeas Corpus Based on a Claim of
Actual Innocence.” In that motion, Jackson asked the court to vacate her sentence
in light of Alleyne v. United States, 133 S.Ct. 2151 (2013) and to resentence her to
a lesser sentence. She also asked the court to set aside her sentence imposed for
Count Two, arguing that imposing a sentence for a violation of 18 U.S.C. § 924(c)
(using/carrying a firearm during and in relation to a crime of violence) was
impermissible "double counting" in light of the sentence imposed under Count
One (armed bank robbery). The court construed that motion as a motion under §
2255, and it was, again, denied because Jackson once again failed to secure a
successive § 2255 petition, as required by statute. Jackson sought a certificate of
appealability from the Eleventh Circuit and that request was denied on August 13,
2014.
On January 6, 2015, Jackson filed her fourth post-conviction pleading,
which was styled "Motion to Obtain Relief By Way of 2255(e)." She again sought
to have her conviction under Count Two set aside and her sentence under Count
One reduced, this time using as a procedural avenue the “savings clause” found at
28 U.S.C. § 2255(e) and 28 U.S.C. § 2241. The Government responded to
Jackson's motion. Jackson replied by filing a "Motion To Establish Cause and
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Prejudice" (doc. 5), which this court treated as a response to the Government's
opposition. (See docket entry 7). In that motion, she asserted that her sentence as
to Count Two should be vacated "due to [her] being Actual innocence [sic] of
discharging a firearm." (Doc. 5 at 1). The undersigned denied that motion as
procedurally barred under § 2255, not "saved" by § 2241, and, on the merits, she
had not shown "actual innocence."
ANALYSIS
This most recent pleading is again a § 2255 habeas motion. It is her fifth
such motion. It raises no arguments that this court has not previously considered in
one or another of her prior such motions. The court further takes judicial notice
that Jackson has not demonstrated that she has permission from the Eleventh
Circuit Court of Appeals to file this successive petition. Accordingly, it is
procedurally barred.
“[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). Because Jackson has previously sought
collateral relief pursuant to § 2255 which was dismissed, and she has not
demonstrated that she has obtained permission from the Eleventh Circuit to file a
second or successive motion, this Court is without jurisdiction to entertain the
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instant § 2255 motion. 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,
the court will sua sponte dismiss it. Such dismissal will be without prejudice to
allow Jackson the opportunity to seek authorization from the Eleventh Circuit to
file a second or successive § 2255 motion.
ORDER
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. Jackson, 2:09-cr-453-VEH-JHE.
3. The Clerk is further directed to send Jackson the Eleventh Circuit's
application form for leave to file a second or successive § 2255 motion under 28
U.S.C. § 2244(b).
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
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IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Jackson 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 her 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, Jackson cannot make the
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requisite showing in these circumstances. Finally, because Jackson is not entitled
to a COA, she is not entitled to appeal in forma pauperis.
DONE and ORDERED this the 23rd day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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