ARMSTRONG v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Susan D. Wigenton on 7/5/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-3699 (SDW)
UNITED STATES OF AMERICA,
IT APPEARING THAT:
1. On March 9, 2012, Petitioner, Alhadi Armstrong, was sentenced to 105 months
imprisonment following a plea of guilty to his being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). (ECF No. 1 at 2-3).
2. On April 1, 2013, Petitioner filed a motion to vacate his sentence on that charge. (Id. at
3). This Court denied that motion on the merits by way of an order and opinion issued on July 6,
3. On June 23, 2016, Petitioner filed in this Court a second motion to vacate sentence in
which he argued that he was improperly sentenced under the Career Offender Guideline based on
the Supreme Court’s decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015).
(ECF No. 1). On that same day, Petitioner filed with the Third Circuit a petition for leave to file
a second or successive motion to vacate sentence pursuant to 28 U.S.C. §§ 2255(h) and 2244(b).
(See In re Armstrong, Third Circuit Docket No. 16-2876).
4. On May 26, 2017, the Third Circuit denied Petitioner’s petition for leave to file a second
or successive motion to vacate sentence, ruling as follows:
Petitioner’s application under 28 U.S.C. §§ 2244 and 2255(h) for
leave to file a second or successive § 2255 motion is denied.
Petitioner was sentenced under the advisory Sentencing Guidelines.
In his § 2244/2255(h) application, he initially sought leave to
challenge his sentence on the ground that the definition of “crime of
violence” contained in the residual clause of U.S.S.G. § 4B1.2(a) is
unconstitutionally vague. Petitioner relied for that proposition on
Johnson v. United States, 135 S. Ct. 2551 (2015), and he argued that
Johnson constitutes 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(h)(2). The Supreme
Court, however, has since held that the analysis in Johnson does not
apply to the advisory Sentencing Guidelines and that, as a result, “§
4B1.2(a)’s residual clause is not void for vagueness.” Beckles v.
United States, 137 S. Ct. 886, 897 (2017). Thus, petitioner has not
made a prima facie showing that his proposed § 2255 motion
satisfies the § 2255(h) standard because, under Beckles, Johnson did
not announce a new rule of constitutional law invalidating §
4B1.2(a)’s residual clause. Petitioner also has not responded to the
Clerk’s order to show cause why his application should not be
denied in light of Beckles.
(See In re Armstrong, Third Circuit Docket No. 16-2876 at Document No. 003112636745 at 1-2).
5. As Petitioner has filed motion to vacate his sentence and as the Third Circuit has now
ruled upon his request for leave to file a successive § 2255 motion, this Court is required to
preliminarily review Petitioner’s current motion pursuant to Rule 4 of the Rules Governing Section
2255 Proceedings, and “dismiss the motion” if it “plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving party is not entitled to relief.”
Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
6. Pursuant to 28 U.S.C. §§ 2244(b) and 2255(h), a petitioner may not file a second or
successive motion to vacate sentence in this Court without first acquiring authorization from the
appropriate Court of Appeals. Absent authorization from the Court of Appeals, this Court has no
jurisdiction over a second or successive motion to vacate sentence. Robison v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002); Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) (a “petitioner’s failure
to seek authorization from the appropriate appellate court before filing a second or successive
habeas petition acts as a jurisdictional bar”). 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.” Robinson, 313 F.3d at
7. In this matter, Petitioner sought, and was denied, leave to file a second or successive
motion to vacate sentence by the Third Circuit. As such, this Court is without jurisdiction to review
Petitioner’s second or successive motion to vacate sentence. Id. Petitioner’s motion must
therefore be dismissed without prejudice for lack of jurisdiction.
8. In conclusion, Petitioner’s current motion to vacate sentence is dismissed for lack of
jurisdiction as it is a second or successive § 2255 motion brought without leave of the Court of
Appeals. An appropriate order follows.
Dated: July 5, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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