Jones v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/16/2016. (JLC)
2016 May-16 AM 09:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OR AMERICA,
) Case No.: 2:16-cv-08039-VEH
On May 12, 2016, the movant, Nathaniel Jones (hereinafter “Jones”), filed
what purported to be a “60(b) Motion” (hereinafter the “Motion”) (Doc. 1; Doc. 65
in 2:02-cr-00405-VEH-SGC).1 Although, in that Motion, Jones argues that it is not
a “successive 2255 motion in 60(b)’s clothing” (id. at 2), that is exactly what it is.
On May 13, 2016, the undersigned explained that the Motion is properly brought
pursuant to 28 U.S.C. § 2255 and directed the Clerk to open a civil action and filed
the Motion in it. (Order, Doc. 67 in 2:02-cr-00405-VEH-SGC).2 The Clerk did so
(Doc. 66 in 2:02-cr-00405-VEH-SGC), and now the undersigned turns to the
The related criminal case. That case was reassigned to the undersigned that same day.
(Docket entry dated 5/12/2016 in 2:02-cr-00405-VEH-SGC)).
Copy attached hereto.
Motion as it is properly considered; a successive 2255 motion.
It is well-settled law that second or successive petitions (SSP) under section
2255 must be dismissed unless certified 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.
28 U.S.C. § 2255(h). “The bar on second or successive motions is jurisdictional.”
In re Morgan, 717 F.3d 1186, 1193 (11th Cir. 2013) (Pryor, J., concurring in
denial of rehearing en banc). “Whether a petition is second or successive depends
on ‘the judgment challenged.’” Patterson v. Sec'y, Florida Dep't of Corr., 812
F.3d 885, 898 (11th Cir. 2016) (Pryor, J., dissenting) (quoting Insignaries v. Sec’y,
Fla. Dept. of Corrections, 812 F.3d 885, 898 (11th Cir. 2014)).
The Motion is a SSP because it challenges the same judgment as Jones’s
prior motion under 2255.3 Accordingly, he cannot proceed in this court unless he
first receives permission to do so from the United States Court of Appeals. Finding
See Order, Doc. 67 in 2:02-cr-00405-VEH-SGC.
no such permission, the motion is due to be DENIED for want of jurisdiction.4
A prisoner seeking to vacate his judgment 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
In light of this denial, Chandler’s motion for the appointment of counsel, doc. 2, which
was frivolous anyway, is termed as MOOT.
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Because
the instant motion is clearly a successive section 2255 motion, Jones cannot make
the requisite showing. Finally, because Jones is not entitled to a COA, he is not
entitled to appeal in forma pauperis.
DONE this 16th day of May, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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