LEWIS v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 12/27/2016. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civ. No. 16-8997 (NLH)
P.O. Box 3000
White Deer, PA 17887
Petitioner, pro se
HILLMAN, District Judge
Petitioner Jevon Lewis (“Petitioner”), an inmate currently
confined at United States Penitentiary (“USP”) Allenwood in
White Deer, Pennsylvania has submitted a motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF
For the reasons set forth below, the Petition will be
Petitioner was one of three co-defendants tried and
convicted for participating in an extensive drug-trafficking
conspiracy based out of Camden, New Jersey.
After a two month
trial, a jury found Petitioner guilty on three counts:
conspiracy to distribute and to possess with intent to
distribute cocaine and cocaine base, under 21 U.S.C. § 846 and §
841(b)(1)(A); murder in furtherance of a drug-trafficking
conspiracy, under 21 U.S.C. § 848(e)(1)(A); and murder in the
course of a firearms offense, under 18 U.S.C. § 924.
States v. Lewis, Crim. Action No. 06-76 (JEI), ECF No. 281.)
The court sentenced Petitioner to a term of life imprisonment
plus 120 months.
(Id. at ECF No. 317.)
Petitioner appealed and
the Third Circuit affirmed the conviction and sentence.
States v. Lewis, 447 F. App'x 310, 313 (3d Cir. 2011).
Thereafter, Petitioner filed his first 2255 petition.
(Lewis v. United States, Civil Action No. 13-1453 (JEI).)
The court issued a Miller notice1 on June 14, 2013, to which
Petitioner never responded. (Id. at ECF No. 2.)
United States of America ("Respondent"), filed an answer on
April 11, 2014 (Id. at ECF No. 7), and Petitioner filed a reply
on May 16, 2014 (Id. at ECF No. 10).
The petition alleged two grounds for relief: (1) Petitioner
was actually innocent of the crimes; and (2) Petitioner’s
sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
United States v. Miller, 197 F.3d 644 (3d Cir. 1999).
(Id. at ECF No. 1.)
On June 9, 2015, the Honorable Joseph E.
Irenas, United States District Judge, denied the petition on the
(Id. at ECF Nos. 16, 17.)
Petitioner did not file an
The instant 2255 Petition followed.
(ECF No. 1.)
second Petition, Petitioner raises the following grounds for
relief:2 (1) “Mr. Lewis challenge Victim Restitution under 16(b)
which is identical 924(c)(3)(b) and applys to Beckles v. US, No.
15-8544 Hold in abeyance”; (2) “Mr. Lewis challenge Dued Counsel
Ineffectiveness For Not Challenging That 846 Charge Was Lessor
Include Offense Than 848(e) Therefore 924(c) Should Be Dismiss
and Cannot stand See (Beckles No. 15-854 [cuts off]”; (3) “Mr.
Lewis Did District Court Fail To Determine Whether
Defendant Possessed The Requisite Mental State To Satisfy The
Definition of first Degree Murder Instead Second degree”; (4)
“Mr. Lewis Challenge Beckles/FSA Should Be Retroactive To 50
grams or more Cocaine Base”; (5) “Did Counsel Show Ineffectiveness
In Not Challenging Sentencing Manipulation”; (6) “Did Counsel
Establish Ineffectiveness For Not Severance Judge Testimony and
Calling Available Witness Lacreia Lewis As Alibi Witness or
Subpeona records from Travel Agent(Liberty Travel) Trip To
Spelling and grammar errors in the original are retained.
Mexico; and (7) “Amendment 794 Effective November 1, 2015 and is
Dued November 1, 2016. 2255(f)(2).”
On April 24, 1996, Congress enacted the Anti–Terrorism and
Effective Death Penalty Act (“AEDPA”), which limits a district
court's jurisdiction over second or successive § 2255 motions.
See United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999).
“Before 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.”
28 U.S.C. §
Similarly, Rule 9 of the Rules Governing Section
2255 Proceedings, entitled “Second or Successive Motions,”
provides: “Before presenting a second or successive motion, the
moving party must obtain an order from the appropriate court of
appeals authorizing the district court to consider the motion,
as required by 28 U.S.C. § 2255.”
28 U.S.C. § 2255 Rule 9.
The Court of Appeals may certify or authorize the filing of
a second or successive § 2255 motion in the district court 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
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)(1) and (2); see In re Dorsainvil, 119 F.3d
245, 247 (3d Cir. 1997); In re Pendleton, 732 F.3d 280 (3d Cir.
Section 2255(h), read in conjunction with 28 U.S.C. §
2244(b)(3)(A) and Rule 9, establishes that a district court
lacks jurisdiction over a second or successive § 2255 motion
that has not been certified or authorized by the court of
See In re Olabode, 325 F.3d 166, 169 (3d Cir. 2003)
(“Before a second or successive section 2255 motion may be filed
in the district court, the applicant must move in the
appropriate court of appeals for an order authorizing the
district court to consider the motion”).
Here, while the exact nature of Petitioner’s claims are
unclear, what is clear is that he is attempting to raise new
challenges to his 2009 conviction that were not presented in his
previously denied § 2255 motion.
This Court lacks jurisdiction
to entertain the present § 2255 motion because the Third Circuit
Court of Appeals has not authorized Petitioner to file a second
or successive § 2255 motion.
See 28 U.S.C. § 2244(b)(3)(A);
Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) (“A
petitioner's failure to seek such authorization from the
appropriate court before filing a second or successive habeas
petition ‘acts as a jurisdictional bar’”) (quoting United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000)).
B. Dismissal or Transfer
“When a second or successive habeas petition is erroneously
filed in a district court without the permission of a court of
appeals, the district court's only option is to dismiss the
petition or transfer it to the court of appeals pursuant to 28
U.S.C. § 1631.”
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
Petitioner has already filed an application for
authorization to file a second or successive § 2255 motion which
remains pending with the Third Circuit.
Civil Action No. 16-4066 (3d. Cir. 2016).
See In Re: Jevon Lewis,
Therefore, it is
unnecessary for the Court to transfer this Petition and it will
III. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from an
order entered on a § 2255 proceeding unless a judge issues a
certificate of appealability on the ground that “the applicant
has made a substantial showing of the denial of a constitutional
28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d).
This Court denies a certificate of appealability because jurists
of reason would not find it debatable that dismissal for lack of
jurisdiction of the § 2255 motion is correct.
See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Based on the foregoing, the Court will dismiss the § 2255
motion and deny a certificate of appealability.
Dated: December 27, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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