PIERCE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 3/3/2015. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civ. No. 14-0758 (NLH)
Daryl Pierce, #05620-067
P.O. BOX 3000
Pine Knot, KY 42635
Petitioner pro se
HILLMAN, District Judge
Petitioner Darryl Pierce files this motion under 28 U.S.C.
§ 2255 challenging his conviction and alleging ineffective
assistance of counsel.
For the reasons that follow, the
Petition will be dismissed for lack of jurisdiction.
Petitioner was indicted in the District of New Jersey on
November 14, 2006 in a three-count indictment.
Count 1 charged
distribution of cocaine in violation of 21 U.S.C. § 841.
2 charged the Petitioner with knowingly and willfully possessing
and brandishing a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
charged violations of 18 U.S.C. §§ 922(g) and 924(e)(1) alleging
that the Petitioner was an Armed Career Criminal.
On May 10, 2007 Petitioner entered a plea to Count 3 of the
Indictment in exchange for dismissal of Counts 1 and 2.
Petitioner pled guilty pursuant to a written plea agreement,
dated March 29, 2007 and signed by the Petitioner on April 25,
2007, which contained a comprehensive waiver of appeal and
In that agreement, the parties jointly
agreed that the Court should sentence the Petitioner to the
statutory mandatory 15-year sentence required upon a conviction
under the statute applicable to Count 3, 18 U.S.C. § 924(e)(1).
That agreement, while binding on the parties, was not binding on
On November 15, 2007, this Court sentenced the
Petitioner to a term of 16 years (192 months) and upon motion of
the United States dismissed Counts 1 and 2 of the Indictment.
On October 19, 2010, Petitioner filed a motion under 28
U.S.C. § 2255 challenging his conviction on various grounds. See
Pierce v. United States of America, Civil Action No. 10-5387
On June 23, 2011, this Court issued a Miller Notice 1 and
No Miller notice and order is necessary to afford Petitioner an
opportunity to raise additional § 2255 grounds, because it is
Petitioner's second motion under § 2255. The purpose of the
Third Circuit's decision in United States v. Miller, 197 F.3d
Order advising Petitioner of his obligation to file a single
petition asserting all potential claims or face the risk of a
second or successive habeas petition bar and to notify the Court
of his intentions within 45 days.
He later supplemented that
motion, out of time, with filings entered on December 18 and
December 27, 2011.
The government filed a motion to dismiss the
Petition on April 18, 2012.
In an Order dated July 2, 2012,
this Court granted the government’s motion and dismissed the
Petition as untimely.
Petitioner’s Motion for Reconsideration
was denied in an Order dated June 24, 2014 and the civil case
Petitioner has now filed another habeas petition
challenging his conviction on the grounds that he received
ineffective assistance of counsel.
STANDARD OF REVIEW
United States Code Title 28, Section 2243, provides in
relevant part as follows:
644 (3d Cir.1999), was to provide fair warning to petitioners
whose petitions were being re-characterized as § 2255 motions so
that they could ensure that all their claims were fully raised
in a single all-encompassing § 2255 petition. Such warning, the
Miller court reasoned, is necessary because petitioners will
thereafter be unable to file “second or successive” § 2255
petitions without certification by the Court of Appeals. As
this is Petitioner's second § 2255 motion, no purpose would be
served by a Miller notice.
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers. Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir.2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief. See Denny v. Schult,
708 F.3d 140, 148 n. 3 (3d Cir. 2013). See also 28 U.S.C. §§
“It is axiomatic that federal courts are courts of limited
jurisdiction, and as such are under a continuing duty to satisfy
themselves of their jurisdiction before proceeding to the merits
of any case.” Packard v. Provident Nat. Bank, 994 F.2d 1039,
1049 (3d Cir.) (citations omitted), cert. denied, 510 U.S. 946
(1993). See also Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013);
Bender v. Williamsport Area School District, 475 U.S. 534, 541
Here, Petitioner has asserted jurisdiction under 28
U.S.C. § 2255.
This is Petitioner’s second habeas petition
filed in this district and, although he alleges different
grounds for relief, this Petition challenges the same underlying
conviction as his previous petition.
Thus, the Petition
presently before the Court must be considered a second or
successive motion under § 2255, for which Petitioner has not
received authorization to file, and over which this Court lacks
jurisdiction. 2 28 U.S.C. § 2255.
If a “second or successive” habeas petition is filed in the
district court without authorization from the appropriate court
of appeals, the district court may dismiss for lack of
jurisdiction or transfer the petition to the court of appeals
pursuant to 28 U.S.C. § 1631. See Padilla v. Miner, 150 F. App’x
116 (3d Cir. 2005); Littles v. United States, 142 F. App’x 103,
104 n.1 (3d Cir. 2005) (citing Robinson v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003)).
However, because § 2244(b) is effectively “‘an allocation of
subject-matter jurisdiction to the court of appeals,’” Robinson
v. Johnson, 313 F.3d at 140 (quoting Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)), a district court may dismiss
Petitioner does not allege that he has received permission from
the Third Circuit to file a second or successive motion and it
does not appear from this Court’s review of filings in the Third
Circuit that he has sought or received such permission.
such a petition only without prejudice. See Ray v. Eyster, 132
F.3d 152, 155-56 (3d Cir. 1997).
As Petitioner has already filed a § 2255 motion in this
district, and cannot file a second or successive motion without
leave of the appropriate Court of Appeals, this Court must
determine whether transfer of this Petition to the Court of
Appeals for the Third Circuit, for consideration as an
application for leave to file a “second or successive” petition,
would be in the interest of justice.
Under 28 U.S.C. §§ 2244
and 2255, the Court of Appeals may authorize the filing of a
second or successive § 2255 motion only if it contains “(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
unavailable.” 28 U.S.C. § 2255.
Petitioner does not allege as a grounds for relief any of
those for which a Court of Appeals may authorize the filing of a
second or successive § 2255.
Accordingly, it would not be in
the interest of justice to transfer this Petition to the Court
of Appeals for the Third Circuit.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, jurists of reason would not find it debatable whether
this Court’s procedural ruling is correct.
Court will decline to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
For the reasons set forth above, this Court finds that it
lacks jurisdiction over the Petition and will dismiss it without
An appropriate Order follows.
___s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge
Dated: March 3, 2015
At Camden, New Jersey
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