Mikell v. United States of America

Filing 47

ORDER denying 45 Motion for Reconsideration re 43 Order Adopting Report and Recommendations, filed by Bob Aaron Mikell. Signed by Judge B. Avant Edenfield on 4/7/2011. (loh)

Mikell v. United States of America

Doc. 47

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION BOB AARON MIKELL, Petitioner, v. 6:09-cv-65

habeas relief on the basis that a previous state court drug conviction was improperly considered during sentencing. See id. at 1. Mikell made the same argument, among others, in his original habeas petition. See Doc. 35 at 4. Because Mikell seeks the same substantive relief here that he did in his habeas petition, the instant motion is properly construed as a successive habeas petition. See Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005) (holding that a Rule 60(b) motion should be construed as a second or successive habeas petition when it advances claims that were presented in a prior application); Williams v. Chatham, 510 F.3d 1290, 1293-94 (11th Cir. 2007) (A motion for reconsideration is to be treated as a successive habeas petition if it: "(1) seeks to add a new ground of relief; or (2) attacks the federal court's previous resolution of a claim on the merits.") (internal quotations omitted). In order for Mikell to properly file a second or successive 2255 motion, he must first obtain permission to do so from the Eleventh Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) (stating that "[b]efore 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"); see also 28 U.S.C. § 2255 (h) (referencing section 2244's certification requirement). Specifically, the appellate court must certify that the second or successive petition contains: "(1) newly discovered evidence that, if proven and viewed in light of the

UNITED STATES OF AMERICA, Respondent. ORDER I. INTRODUCTION Petitioner Bob Aaron Mikell ("Mikell") pled guilty to possession with intent to distribute cocaine on January 8, 2008. See 6:06-cr-26-10 (the "Criminal Case"), Doc. 919. This Court sentenced him to 132 months' imprisonment. See Criminal Case, Doc. 751. Mikell appealed his sentence, and the Eleventh Circuit affirmed. See Criminal Case, Doc. 839. On September 8, 2009, Mikell requested habeas corpus relief by way of a motion to vacate, set aside or correct his sentence. See Doc. 1. This Court denied Mikell's motion on March 3, 2011. See Docs. 43, 44. The convoluted procedural history of this case is outlined in detail by the Government in its response to the instant motion. See Doc. 46 at 1-5. Mikell's 60(b) motion to reconsider the denial of habeas relief is currently before the Court. See Doc. 45. II. ANALYSIS In his motion for reconsideration, Mikell alleges that the Court should have granted

Dockets.Justia.com

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). Therefore, this Court is not authorized to review the substance of Mikell's arguments absent permission from the Eleventh Circuit. See Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (stating that pursuant to section 2244, "the district court lacked jurisdiction to consider [the petitioner's] request for relief because [he] had not applied to [the appropriate court of appeals] for permission to file a second habeas petition"). Mikell has presented no evidence that he has either requested or received the Eleventh Circuit's blessing to file this successive petition. Until such permission is granted, this Court lacks jurisdiction to consider his arguments.
III. CONCLUSION

Mikell's motion for reconsideration is
DENIED.

This 7th day of April 2011.

B- AVANT PDENFIELØ, JUDGE AVANT UNFED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

2