Jennings v. USA
Filing
5
MEMORANDUM OPINION & ORDER as to David Jennings. (1) The Clerk of Court is DIRECTED to transfer Petitioner David Jennings current motion 142 to the United States Court of Appeals for the Sixth Circuit as a second or successive petition see king relief under 28 U.S.C. § 2255. (2) To the extent that the Petitioner seeks relief from this Court, that request is DENIED, in accordance with 28 U.S.C. § 2244(a). Signed by Judge Danny C. Reeves on 7/18/2013.(LMB)cc: COR,USM,USP, 6thCCA. Signed by Judge Danny C. Reeves on 7/18/2013.(LMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
DAVID JENNINGS,
Defendant/Movant.
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Criminal Action No. 2: 06-79-DCR
Civil Action No. 2: 11-7157-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of Defendant/Movant David Jennings’ motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 142]
Because the current motion is a second or successive habeas petition under 28 U.S.C. § 2255,
it will be transferred to the United States Court of Appeals for the Sixth Circuit in accordance
with 28 U.S.C. § 22441 and Rule 9 of the Rules Governing Section 2255 Proceedings for the
United States District Courts.
In 2006, Jennings pleaded guilty to distributing cocaine and using property subject to
forfeiture. [Record No. 19] After his first sentence was reversed on appeal, the case was
reassigned to the undersigned. [Record Nos. 57, 58] In November 2008, the Court re-sentenced
Jennings to a term of imprisonment of 120 months. [Record No. 72] The Sixth Circuit affirmed
1
Title 28 of the United States Code, Section 2244(a)(3)(A), provides 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.”
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this sentence. See United States v. Jennings, 407 F. App’x 20 (6th Cir. 2011). On February 3,
2011, Jennings filed his first motion seeking relief under 28 U.S.C. § 2255.2 [Record No. 90]
In his initial § 2255 motion, Jennings sought to challenge his sentence by arguing that his
counsel was ineffective at sentencing and re-sentencing because he failed to file a sentencing
memorandum and failed to effectively argue the 18 U.S.C. § 3553(a) sentencing factors.
Jennings also asserted that his sentence was substantively and procedurally unreasonable, a
contention that the Sixth Circuit had already rejected on direct appeal. [Record No. 115, p. 3]
This Court denied Jennings’ initial motion for habeas relief on July 25, 2011, because Jennings
failed to show that counsel’s performance was deficient and because the challenge to his 120month sentence had been found meritless by the Sixth Circuit. [Record No. 115] In his current
petition, Jennings’ claims that, in light of the Supreme Court’s recent holding in Alleyne v.
United States, 570 U.S. ___, 133 S. Ct. 2157 (2013), he is actually innocent of the offense of
being a “career offender” under 21 U.S.C. § 841(a)(1) and section 4B1.1 of the United States
Sentencing Guidelines. Thus, he again argues that his sentence should be reduced.
Because neither the Supreme Court nor the Sixth Circuit have found Alleyne to be
retroactive, Jennings current claim is suspect. However, before this Court addresses this issue,
Jennings must first overcome another hurdle. Because the Court has previously denied habeas
relief to Jennings under 28 U.S.C. § 2255, his current motion constitutes a second or successive
2
The United States moved for a more definite statement. [Record No. 95] The Court granted the
United States’ motion [Record No. 96], and Jennings filed a more complete petition on March 28, 2011.
[Record No. 102].
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motion. See 28 U.S.C. § 2244(a).3 Therefore, Jennings’ motion is procedurally barred unless
the Sixth Circuit determines that he has presented new factual evidence or demonstrated a new
rule of constitutional law. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012); see 28 U.S.C.
§ 2255(h) (“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 the light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable fact finder would have found the movant guilty
fo 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.”). As a result, this Court will
transfer the matter to the United States Court of Appeals so that it may determine whether the
claim may be presented.
Accordingly, for the foregoing reasons, it is hereby
ORDERED as follows:
1.
The Clerk of Court is DIRECTED to transfer Petitioner David Jennings’ current
motion [Record No. 142] to the United States Court of Appeals for the Sixth Circuit as a second
or successive petition seeking relief under 28 U.S.C. § 2255.
3
This statute provides that no district court
shall be required to entertain an application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge or court of the United States
on a prior application for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2255(a); see 28 U.S.C. § 2255(h) (providing standard for certification of second or successive
motion).
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2.
To the extent that the Petitioner seeks relief from this Court, that request is
DENIED, in accordance with 28 U.S.C. § 2244(a).
This 18th day of July, 2013.
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