Tensley v. United States of America

Filing 2

ORDER dismissing 1 --motion to vacate/set aside/correct sentence (2255); directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 7/11/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:03-cr-227-T-23TBM
8:17-cv-1576-T-23TBM

DARIAN TENSLEY
/

ORDER
Tensley moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the
validity of his conviction for possession with intent to distribute more than fifty
grams of cocaine base, for which offense he is imprisoned for 327 months. Rule 4,
Rules Governing Section 2255 Cases, requires both a preliminary review of the
motion to vacate and a summary dismissal “[i]f it plainly appears from the face of the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d 557, 558
(5th Cir. 1980)1 (finding the summary dismissal of a Section 2255 motion was proper
“[b]ecause in this case the record, uncontradicted by [defendant], shows that he is not
entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b)
[Rules Governing § 2255 Proceedings], allows the district court to summarily dismiss
the motion and notify the movant if ‘it plainly appears from the face of the motion

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Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).

and any annexed exhibits and the prior proceedings in the case that the movant is not
entitled to relief . . . .’”). See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir.
1982) (citing Wright and Hart). Tensley’s motion is barred.
Tensley’s conviction became final in 2007 and his one-year limitation under
Section 2255(f)(1) expired in 2008. Tensley asserts entitlement to another year under
Section 2255(f)(3), which affords a limitation from “the date on which the right
asserted was initially recognized by the Supreme Court . . . .” Tensley is ineligible for
a limitation under Section 2255(f)(3) because the present motion to vacate is not his
first motion under Section 2255.
Tensley’s earlier challenge under Section 2255 was denied on the merits in
8:08-cv-293-T-23TBM. Both the district court and the circuit court declined to issue
a certificate of appealability. (Docs. 10 and 15 in 08-cv-293) Tensley cannot pursue
a second or successive motion without authorization from the Eleventh Circuit Court
of Appeals. “Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168
F.3d 440, 442 (11th Cir. 1999). The earlier denial of his motion to vacate precludes
Tensley from again challenging either his conviction or his sentence without first
obtaining authorization from the circuit court.
Section 2255(h) permits authorizing a second or successive motion under two
circumstances, specifically:
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A second or successive motion must be certified as provided in section 2244
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.

Tensley knows that he must obtain authorization under Section 2255(h). In
2016 Tensley requested permission to file a second or successive motion, in which he
claimed entitlement to relief under Johnson v. United States, 135 S. Ct. 2551 (2015).
The circuit court rejected his asserted entitlement to a limitation under Section
2255(h)(2). (Doc. 18 in 08-cv-293)
In the present motion to vacate Tensley asserts entitlement to the retroactive
application of United States v. Mathis, 136 S. Ct. 2243 (2016). Tensley fails to
represent that the circuit court has granted him the necessary authorization. A
district court lacks jurisdiction to review a second or successive motion without the
requisite authorization from the circuit court. Burton v. Stewart, 549 U.S.147, 157
(2007) (“Burton neither sought nor received authorization from the Court of Appeals
before filing his 2002 petition, a ‘second or successive’ petition challenging his
custody, and so the District Court was without jurisdiction to entertain it.”). As a
consequence, the district court must dismiss the present motion to vacate.
Generally, an applicant cannot appeal a district court’s denial of relief under
Section 2255 unless either the district court or the circuit court issues a certificate of
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appealability (“COA”). However, as Williams v. Chatman, 510 F.3d 1290, 1295
(11th Cir. 2007), explains (in the context of an application for the writ of habeas
corpus under Section 2254), a COA cannot issue in this action because the district
court cannot entertain the motion to vacate to review the second or successive
application:
Because he was attempting to relitigate previous claims that
challenge the validity of his conviction, Williams was required
to move this Court for an order authorizing the district court to
consider a successive habeas petition. See 28 U.S.C.
§ 2244(b)(3)(A). Without such authorization, the district court
lacked subject matter jurisdiction to consider the successive
petition, and therefore could not issue a COA with respect to
any of these claims.

See United States v. Robinson, 579 Fed. App’x 739, 741 n.1 (11th Cir. 2014)2 (applying
Williams in determining that the district court lacked jurisdiction because the motion
to alter or amend a judgment under Rule 60(b), Federal Rules of Civil Procedure,
was actually an impermissible second or successive motion under Section 2255 and,
as a consequence, “a COA was not required to appeal the denial of the motion”).
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DISMISSED. The clerk must close this case.
ORDERED in Tampa, Florida, on July 11, 2017.

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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