Perkins v. United States of America
Filing
9
MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 8/2/2018. (AHI)
FILED
2018 Aug-02 AM 11:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
XAVIER PERKINS,
Movant/Defendant,
vs.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
) Case Numbers:
) 2:16-cv-8128-CLS
) 2:05-cr-0135-CLS-JHE
)
)
)
)
MEMORANDUM OPINION
This action is before the court on the motion to vacate, set aside, or correct
sentence, filed by Xavier Perkins.1 This court entered an order on June 29, 2018,
appointing the Office of the Federal Public Defender to “review this matter to
determine if petitioner qualifies for habeas relief under 28 U.S.C. § 2255 in light of
Johnson v. United States, 135 S. Ct. 2251 (2015).”2 The Office of the Federal Public
Defender filed a response on July 30, 2018, stating:
It appears this Court lacks jurisdiction to review Mr. Perkins[’s] motion
because he has previously filed a motion to vacate his sentence, pursuant
to 28 U.S.C. § 2255, and a review of court records indicates that he has
not obtained authorization from the Eleventh Circuit to file a second
motion pursuant to 28 U.S.C. § 2255.
1
See doc. no. 1, in case no. 2:16-cv-8128-CLS.
2
Doc. no. 4 (Order), in case no. 2:16-cv-8128-CLS.
Doc. no. 8 (Response to the Court’s Order Appointing the Office of the Federal
Public Defender) in case no. 2:16-cv-8128-CLS, at 1 (alteration supplied, citations
omitted).
Indeed, Perkins previously filed a motion to vacate, correct, or set aside his
sentence pursuant to 28 U.S.C. § 2255 on April 11, 2007, and that motion was denied
on February 23, 2009.3 Perkins did not identify that previous motion in his present
petition, despite being asked to do so.4 There also is no indication that he received
permission from the Eleventh Circuit Court of Appeals to file a second or successive
petition, as required by 28 U.S.C. § 2255(h). See 28 U.S.C. § 2255(h) (“A second or
successive motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals . . . .”); 28 U.S.C. § 2244. That requirement is
jurisdictional in nature. See, e.g., Burton v. Stewart, 549 U.S. 147, 153 (2007).
Because Perkins did not seek prior authorization from the Eleventh Circuit to file this
second § 2255 motion, this court lacks jurisdiction to consider the motion.
An appropriate Judgment will be entered contemporaneously herewith.
3
See doc. no. 1 (Motion to Vacate, Correct, or Set Aside the Petitioner’s Sentence Pursuant
to 28 U.S.C. § 2255), doc. no. 11 (Memorandum Opinion), and doc. no. 12 (Order of Dismissal) in
case no. 2:07-cv-8014-CLS-RRA.
4
See doc. no. 1 (Motion) in 2:16-cv-8128-CLS, at 2, ¶ 10 (“Other than the direct appeals
listed above, have you previously filed any other motions, petitions, or applications concerning this
judgment of conviction in any court?”).
2
DONE and ORDERED this 2nd day of August, 2018.
______________________________
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?