Church v. USA

Filing 1

OPINION AND ORDER: The Court DISMISSES FOR LACK OF JURISDICTION the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 347 filed in 1:15cr42. Signed by Judge Theresa L Springmann on 2/25/2021. (Copy mailed to pro se party) (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.

CAUSE NO.: 1:15-CR-42-1-TLS-SLC
1:20-CV-98-TLS

FREDDIE L. CHURCH, JR.
OPINION AND ORDER
This matter is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 347], filed by Defendant
Freddie L. Church, Jr. on February 28, 2020. The Defendant is serving a sentence for attempting
to interfere with commerce by robbery in violation of 18 U.S.C. § 1951(a) and (b) and for
carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §
924(c). The Defendant now seeks to vacate his conviction and sentence under § 924(c) based on
the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019).
However, the Defendant previously filed a Motion for Relief Under 28 U.S.C. § 2255
[ECF No. 322], which the Court denied on April 17, 2019 [ECF No. 338], and declined to issue a
certificate of appealability. As a result, the Defendant’s instant Motion to Vacate is a second or
successive motion. “A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals . . . .” 28 U.S.C. § 2255(h). “Without authorization
from the court of appeals, the district court has no jurisdiction to hear the petition.” Suggs v.
United States, 705 F.3d 279, 282 (7th Cir. 2013) (citing Burton v. Stewart, 549 U.S. 147, 152–
53, (2007)); United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007) (holding that, unless
the defendant “seeks and obtains permission from the court of appeals to file [a second or
successive] motion, the district court is without jurisdiction to entertain his request” (citing
Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)). Here, it does not appear that the

Defendant has obtained permission from the Court of Appeals to file this successive petition, and
thus, this Court cannot review the merits of the Defendant’s arguments.
NO CERTIFICATE OF APPEALABILITY
The Court must “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11 of the Rules Governing Section 2255 Proceedings. A
certificate of appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Rule 11 of the Rules
Governing Section 2255 Proceedings. The substantial showing standard is met when “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Where, as here, “a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id. Therefore, the Court will not issue the
Defendant a certificate of appealability.
CONCLUSION
Because the Defendant has not obtained permission from the Court of Appeals to file a
second habeas motion, the Court DISMISSES FOR LACK OF JURISDICTION the Defendant’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [ECF No. 347].
SO ORDERED on February 25, 2021.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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