Webb v. USA

Filing 2

ORDER DISMISSING Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Undray C. Webb (Doc. 1 ). Signed by Judge Staci M. Yandle on 8/3/2020. (sgp)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNDRAY C. WEBB
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 20-CV-637-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
On June 29, 2020, Petitioner Undray C. Webb filed a Habeas Petition Under 28 U.S.C. §
2255 challenging his sentence based on the Supreme Court’s decision in United States v. Davis,
finding that the “residual” definition of a crime of violence in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague. 139 S.Ct. 2319 (2019) (Doc. 1). For the following reasons, Webb’s
petition is DISMISSED.
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.” A preliminary review of Webb’s petition reveals that it is subject to dismissal as
an unauthorized second or successive habeas petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “governs § 2255
proceedings and imposes 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.”
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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)).
Webb previously filed a § 2255 petition that was dismissed with prejudice (see Webb v.
United States, Case No. 17-cv-1139-SMY). As such, the instant Petition is his second attempt at
relief under § 2255 and requires prior approval from the Seventh Circuit Court of Appeals. Webb
sought and was denied permission from the Seventh Circuit to file a second or successive § 2255
petition (See United States v. Webb, 15-cr-30016-SMY, Doc. 369), and therefore, this Court is
without jurisdiction to consider the pending petition. Obeid, 707 F.3d at 901 (citing Nuñez v.
United States, 96 F.3d 990, 991 (7th Cir. 1996)). Accordingly, Webb’s June 29, 2020 Habeas
Petition Under 28 U.S.C. § 2255 (Doc. 1) is dismissed for lack of jurisdiction.
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

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“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, because Webb did not receive permission to file a successive § 2255 petition, he is
not entitled to issuance of a certificate of appealability.
IT IS SO ORDERED.
DATED: August 3, 2020
STACI M. YANDLE
United States District Judge

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