Jones v. USA

Filing 49

ORDER DENYING Plaintiff's Motion for Procedural Relief (Doc. 46 ), Motion to Appoint Counsel (Doc. 47 ), and Motion to Supplement (Doc. 48 ). Signed by Judge Staci M. Yandle on 11/2/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVE JONES

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 08-CV-255-SMY

MEMORANDUM AND ORDER
In March of 2005, a jury convicted Petitioner Steve Jones of one count of conspiracy to
distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count 1), and one count of sale of a firearm to a known felon in violation of 18 U.S.C. §§ 2 and
922(d)(1) (Count 2).

See United States v. Poenitske et al., Case No. 02-CR-30145-WDS.

Petitioner was sentenced to concurrent sentences of 360 months in prison on Count 1 and 120
months on Count 2. He appealed, but his appellate counsel filed a motion to withdraw because
she could not discern any nonfrivolous arguments. The Seventh Circuit granted her motion to
withdraw and dismissed the appeal in United States v. Jones, No. 05-3881, 2007 WL 1046515
(7th Cir. 2007). Petitioner then filed a habeas petition under 28 U.S.C. § 2255, asserting
ineffective assistance of counsel (Doc. 1). On September 27, 2011, this Court denied Petitioner’s
§ 2255 petition (Doc. 25) and denied his request for a certificate of appealability (Doc. 31).
Petitioner appealed to the Seventh Circuit, which affirmed this Court’s denial of Petitioner’s §
2255 petition on June 4, 2012 (Doc. 44).
Nearly four years later, Petitioner filed his Motion for Procedural Relief (Doc. 46)
asserting claims for ineffective assistance of counsel. Petitioner also filed a Motion to Appoint
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Counsel (Doc. 47) and a Motion to Supplement his 28 U.S.C. § 2255 Motion as a Second or
Successive Motion Authorized by the Seventh Circuit (Doc. 48).
Under Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States District
Courts, a judge receiving a § 2255 petition must conduct a preliminary review and, “[i]f it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party.” Here, a preliminary review of Petitioner’s motions show that they
must be dismissed as unauthorized second or successive habeas petitions.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “governs § 2255
proceedings and imposes tight limits on second or successive petitions.” Vitrano v. United
States, 721 F.3d 802, 806 (7th Cir. 2013) (citing Suggs v. United States, 705 F.3d 279, 285 (7th
Cir. 2013)). Specifically, AEDPA “allows every prisoner one full opportunity to seek collateral
review.” Vitrano, 721 F.3d at 806 (quoting Johnson v. United States, 196 F.3d 802, 805 (7th Cir.
1999)). Any additional, later-filed petition under 28 U.S.C. § 2255 is a “second or successive”
motion, which a district court may not entertain “unless the prisoner has first obtained
authorization to file from the court of appeals.” United States v. Obeid, 707 F.3d 898, 901 (7th
Cir. 2013) (citing 18 U.S.C. §§ 2244(a); 2255(h)).
Petitioner previously filed a § 2255 petition and received a full round of collateral review.
The instant habeas petition is his second and third attempts at relief under § 2255, which require
prior approval from the Seventh Circuit. There is no indication, however, that Petitioner has
sought permission from the Seventh Circuit to file successive § 2255 petitions. Therefore, this
Court is without jurisdiction to consider the pending motions and they must be dismissed.
Obeid, 707 F.3d at 901 (citing Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)).

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Accordingly, Petitioner’s Motion for Procedural Relief (Doc. 46), Motion to Appoint Counsel
(Doc. 47), and Motion to Supplement his 28 U.S.C. § 2255 Motion as a Second or Successive
Motion Authorized by the Seventh Circuit (Doc. 48) are DENIED.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Proceedings instructs the district court to
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S.
322, 336 (2003). To meet this requirement, the petitioner must “demonstrate that reasonable
jurists would find the district court’s assessment of his constitutional claims debatable or wrong.”
United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v. Dretke, 542
U.S. 274, 281 (2004)). The petitioner need not show that his appeal will succeed, but he must
show “something more than the absence of frivolity” or the existence of mere “good faith” on his
part. Miller-El, 537 U.S. at 337, 338.
Here, Petitioner did not obtain leave to file a successive § 2255 petition. Accordingly, he
is not entitled to issuance of a certificate of appealability.

IT IS SO ORDERED.
DATED: November 2, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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