BROWN v. UNITED STATES OF AMERICA

Filing 4

OPINION. Signed by Chief Judge Jose L. Linares on 7/5/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-3793 (JLL)

WYDOVE BROWN,
Petitioner,

MEMORANDUM OPINION

v.
UNITED STATES OF AMERICA,
Respondent.

IT APPEARING THAT:
1.

On february 4, 2010, Petitioner, Wydove Brown, was found guilty of unlawful

possession of a firearni by a felon in violation of 18 U.S.C.

§ 922(g)(1) following ajury trial. (ECF

No. 1 at 1, 3). Petitioner thereafter received a 120 month prison sentence for that offense. (Id.).
2. Following the conclusion of Petitioner’s direct appeal, Petitioner filed a motion to vacate
sentence pursuant to 28 U.S.C.

§ 2255 on or about March 18, 2013. (Id. at 5). That motion was

denied on the merits by way of an opinion and order issued on May 2, 2016. (Id.).
3. On June 23, 2016, Petitioner filed in this Court a successive 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,

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U.S.

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135 5. 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 Brown, Third Circuit Docket No. 16-29 14).
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. § 4BL2(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.” 2$ 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.” Beck/es v.
United States, 137 S. Ct. $86, $97 (2017). Thus, petitioner has not
made a prima fade showing that his proposed § 2255 motion
satisfies the § 2255(h) standard because, under Beck/es, 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 Beck/es.
“

(See In re Brown, Third Circuit Docket No. 16-2914 at Document No. 003112636565 at 1-2).
5. As Petitioner has filed a 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.” A’Icfarland v. Scott, 512 U.s. 849, 856 (1994).
6. Pursuant to 2$ U.S.C.

§S 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. Robinson v. Johnson, 313 F.3d
12$, 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.”) (quoting United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000)).

“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 139.
7. In this matter, Petitioner sought and was denied leave to file a successive motion to
vacate sentence by the Third Circuit on May 26, 2017. As Petitioner has not been granted leave
to file his current successive motion to vacate sentence, this Court is without jurisdiction to review
Petitioner’s current motion to vacate sentence. Id. Petitioner’s pending 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.

United States District Judge