Clark v. USA
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the instant motion to vacate is DENIED AND DISMISSED AS SUCCESSIVE, because movant did not obtain permission from the court of appeals to bring the motion in this Court. See 28 U.S.C. § 2255(h). IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Rodney W. Sippel on 12/8/2017. (CAR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:17-CV-1802 RWS
MEMORANDUM AND ORDER
This matter is before the Court on movant=s motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255. In the instant motion, movant claims that the new
Supreme Court case of Johnson v. United States, 135 S.Ct. 2551 (2015), decided in June of 2015,
should be applied to his case in order to reduce his sentence.1 The motion is a Asecond or
successive motion@ within the meaning of 28 U.S.C. §§ 2244 & 2255 but has not been certified
by the United States Court of Appeals for the Eighth Circuit as required by the AEDPA.
On June 10, 1983, after a jury trial, movant was sentenced to an aggregate term of onehundred and twenty (120) years of imprisonment for kidnapping, transportation in interstate
commerce of a stolen vehicle, transportation of a female across state lines for immoral purposes
In the instant motion, movant argues that, in light of Johnson v. United States, 135 S.Ct. 2551
(2015) and Mathis v. United States, 131 S.Ct. 2243 (2016), he no longer qualifies as a career
offender because his kidnapping conviction lists multiple alternative means of satisfying its
elements and can no longer serve as a predicate offense as a crime under § 924(e) of the Armed
Career Criminal Act. The Supreme Court has not applied Mathis retroactively, and it appears
movant was untimely in bringing his claims under Johnson, as it was decided more than a year
before movant filed his habeas petition in this Court. See Dawkins v. United States, 829 F.3d
549, 551 (7th Cir. 2016) (“Mathis did not announce [a new rule made retroactive by the Supreme
Court]; it is a case of statutory interpretation.”); see also United States v. Evenson, 864 F.3d 981,
(8th Cir. 2017) (“As the Supreme Court presented it, the decision [in Mathis] simply reflected
the ‘straightforward’ application of decades of precedent.”).
and the use of a firearm to commit the offense of kidnapping. Movant appealed his sentence to
the Eighth Circuit Court of Appeals, and his conviction was affirmed on March 6, 1985.
On January 29, 1986, movant filed a motion to vacate, brought pursuant to 28 U.S.C. §
2255 in this Court. See No. 86-0224C(1) (file submitted to the Honorable Judge John F. Nangle).
On September 29, 1986, Judge Nangle ordered movant to file an amended motion to vacate on
the grounds of ineffective assistance of counsel and denial of due process regarding the
presentence investigation report. The amended motion to vacate was denied on March 25, 1987.
Movant appealed the denial of his motion to vacate to the Eighth Circuit Court of
Appeals. The appeal was dismissed on November 4, 1987.
Movant filed a successive motion to vacate, brought pursuant to 28 U.S.C. § 2255 in this
Court on August 22, 1991. The matter was submitted to the Honorable Stephen N. Limbaugh,
Sr.. He denied and dismissed the action on April 1, 1993. See Clark v. United States, No. 4:91CV-1738 CDP (E.D.Mo.).
Under 28 U.S.C. § 2255:
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
(1) newly discovered evidence that, if proven and viewed in light of
the 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
28 U.S.C. § 2255(h).
Movant submitted his successive § 2255 motion without the required certification. When
a second or successive habeas petition is filed in a district court without the authorization of the
court of appeals, the court should dismiss it, or, in its discretion, transfer the motion to the
appellate court so long as it is in the interests of justice. Boyd v. U.S., 304 F.3d 813, 814 (8th
In this case, the Court will deny and dismiss movant’s action as successive.
IT IS HEREBY ORDERED that the instant motion to vacate is DENIED AND
DISMISSED AS SUCCESSIVE, because movant did not obtain permission from the court of
appeals to bring the motion in this Court. See 28 U.S.C. § 2255(h).
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 8th
day of December, 2017.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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