Jones v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/6/2017. (JLC)
2017 Feb-06 PM 04:03
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.: 2:17-cv-08003-VEH
On February 2, 2017, the movant, Nathaniel Jones (hereinafter “Jones”),
filed, in the companion criminal case, a document entitled “Motion To Dismiss for
Lack of Jurisdiction.” (Doc. 69 in 2:02-cr-0405-VEH). In that Motion, Jones
argues that the sentencing court1 lacked “jurisdiction” to apply a Section 851
enhancement to him. Because the Motion attacks the sentence imposed, I
determined that it necessarily was brought pursuant to 28 U.S.C. § 2255 and
ordered that the Motion be termed in the companion criminal case and that the
Clerk of Court open a case under that code section and docket the Motion in that
case. (Doc. 70 in 2:02-cr-0405-VEH). The Clerk of Court has done as directed, and
The sentencing judge has retired and, on May 12, 2016, this case was reassigned to the
undersigned. (See docket entry dated 6/5/2016).
this is that action. I now address the Motion and find, as explained below, that
because it is a “second or successive” motion under Section 2255, and because
Jones has not received permission from the Eleventh Circuit Court of Appeals to
file it, it is due to be dismissed.
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 2255.2 Accordingly, he cannot proceed in this court unless he
first receives permission to do so from the United States Court of Appeals. Finding
no such permission, the motion is due to be DENIED for want of jurisdiction.
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
In fact, this is Jones’s third § 2255 motion. See Motion To Vacate under 28 U.S.C.
2255, filed February 21, 2006 (Doc. 1 in Civil Action CV-06-J-8010-S); Motion To Rule in
Favor of Civil Rule 60(b), filed May 12, 2016, converted to Motion under § 2255 (Doc. 1 in
Civil Action 2:16-CV-8039).
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 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 6th day of February, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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