Jackson v. United States of America
Filing
511
MEMORANDUM OPINION AND ORDER as to Demond Jackson; Adopting the 502 Proposed Findings and Recommendations of the Magistrate Judge, denying petitioner's 470 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, denying petitioner's 473 Application to Proceed Without Prepayment of Fees and Costs, denying petitioner's 501 Motion to Supplement Additional Grounds, and effectively granting the petitioner's 500 Letter-Form Motion to Strike hi s earlier 498 Motion to Supplement Additional Grounds; denying the petitioner's 499 Motion to Appoint Counsel and denying a certificate of appealability. Signed by Judge Robert C. Chambers on 4/4/2014. (cc: Judge, USA, counsel and any unrepresented parties) (mkw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DEMOND JACKSON,
Petitioner,
v.
CIVIL ACTION NO. 3:12-3287 & 3:12-3350
CRIMINAL ACTION NO. 3:99-00015-05
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
This action was referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge,
who has submitted her proposed findings of fact and recommendations for disposition pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge‟s Proposed Findings and
Recommendations (“PF&Rs”), ECF No. 502,1 were filed on August 9, 2013, and the petitioner‟s
objections to the PF&Rs, ECF Nos. 503 and 509, were filed on August 26, 2013, and, after
receiving the leave of the Court to file objections later than the initial deadline, on September 30,
2013.
The Court has reviewed de novo those portions of the Magistrate Judge‟s PF&Rs to which
the petitioner objects, and it finds that the petitioner‟s objections lack merit. For the reasons set
forth below, the Court ADOPTS the PF&Rs of the Magistrate Judge, which DENY both of the
petitioner‟s Motions to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF
Nos. 466 and 470, DENY the petitioner‟s Application to Proceed Without Prepayment of Fees and
Costs, ECF No. 473, DENY the petitioner‟s Motion to Supplement Additional Grounds, ECF No.
1
All ECF citations are derived from the underlying criminal action, No. 3:99-cr-00015-5.
501, and effectively GRANT the petitioner‟s Letter-Form Motion to Strike his earlier Motion to
Supplement Additional Grounds (ECF No. 498), ECF No. 500.
Additionally, given that the Court lacks jurisdiction to entertain the petitioner‟s § 2255
Motions, the Court DENIES the petitioner‟s Motion to Appoint Counsel, ECF No. 499. The Court
also DENIES a certificate of appealability.
I.
Background
On June 28, 1999, the petitioner pleaded guilty to one count of conspiracy to distribute
cocaine and cocaine base in violation of 21 U.S.C. § 846 and two counts of possession of a firearm
in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). ECF Nos.
162, 163. On February 15, 2000, the petitioner was sentenced to a total of 684 months of
imprisonment: 324 months on Count I, 60 months on Count IX, and 300 months on Count XII,
with each sentence of imprisonment to run consecutive to the other sentences. ECF No. 258.
The petitioner filed his first motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255 on January 9, 2001. ECF No. 279. It was denied by both this Court and the Fourth Circuit
Court of Appeals. ECF Nos. 343, 344, 366, 367. On June 13, 2005, the Court of Appeals denied the
petitioner‟s motion for authorization to file a successive application for relief. ECF No. 387.
On September 12, 2008, this Court granted the petitioner‟s motion for a reduction of his
sentence under Count I, pursuant to 18 U.S.C. §3582(c)(2), in light of Amendment
706—regarding cocaine base offenses—to the Sentencing Guidelines. ECF Nos. 419, 431, 432.
The Court‟s Order reduced the petitioner‟s sentence under Count I to 262 months, based upon a
new, reduced offense level of 35—down from 37—and the unchanged criminal history category of
“V.” ECF No. 432. The petitioner then appealed this reduction, arguing that he was entitled to a
further reduction. ECF No. 433. On April 23, 2009, the Fourth Circuit denied the petitioner‟s
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appeal for further reduction. ECF Nos. 440, 441, 442.
On July 13, 2012, and July 16, 2012, without first obtaining authorization to file any
successive application for relief from the court of appeals, the petitioner filed the instant Motions
to Vacate, Set Aside, or Correct Sentence Pursuant to § 2255. The July 13th Motion specifically
referenced the petitioner‟s 1999 conviction and sentence, attacking the constitutionality of both.
The July 16th Motion purportedly challenged a conviction and sentence entered on September 12,
2008,—the date of the petitioner‟s §3582(c)(2) Count I sentence reduction—but again attacked the
constitutionality of the petitioner‟s original conviction and sentence.
II.
Legal Standard and Analysis
In her PF&Rs, the Magistrate found that this Court, as a district court, has no jurisdiction to
entertain the instant Motions to Vacate, Set Aside, or Correct Sentence Pursuant to § 2255 because
both are successive § 2255 petitions and the petitioner had failed to first obtain authorization from
the court of appeals to file such petitions. PF&Rs at 6-7. Thus, both civil cases which were opened
based upon the instant Motions must be dismissed. See id. at 7. In his Objections, the petitioner
argues that the Magistrate is incorrect because the petitioner‟s §3582(c)(2) Count I sentence
reduction on September 12, 2008, counted as an intervening judgment, which—as explained in
Magwood v. Patterson, 130 S. Ct. 2788, 2802 (2010)—would mean that the first § 2255 motion
filed after that date would not be “successive.” Thus, according to the petitioner, his instant
Motions under § 2255 require no authorization from the court of appeals, and the Court has
jurisdiction.
Section 2255(h), under which the petitioner brings his instant Motions, provides that:
A second or successive motion [under this section] must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to contain-(1) newly discovered evidence that, if proven and viewed in light of the
3
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(h) (emphasis added). Section 2244(b)(3) provides, in pertinent part, “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. § 2244(b)(3)(A) (emphasis added).
The Fourth Circuit has clarified that when a petitioner does not obtain pre-filing
authorization to file a successive § 2255 motion, the district court entirely lacks jurisdiction and
must dismiss the case. See United States v. Winestock, 340 F.3d 200, 205 & n.4, 208 (4th Cir.
2003). However, in Magwood, the Supreme Court clarified that “where . . . there is a new
judgment intervening between the two habeas petitions [filed under § 2254—the state conviction
counterpart to § 2255—], an application challenging the resulting new judgment is not second or
successive.” 130 S. Ct. at 2802 (citation omitted) (internal quotation marks omitted). Though the
Fourth Circuit has not explicitly ruled on whether this holding from Magwood applies to § 2255
cases, several other circuits have so held, and this Court finds their reasoning persuasive. See, e.g.,
Suggs v. United States, 705 F.3d 279, 283 n.1 (7th Cir. 2013), cert. denied, 133 S. Ct. 2339 (2013)
(“Although Magwood concerned a challenge to a state court judgment under 28 U.S.C. § 2254, the
bar on second or successive challenges under section 2254 is parallel to the bar under section 2255.
We therefore apply analysis and reasoning based on section 2254‟s treatment of second or
successive petitions to section 2255.”); In re Lampton, 667 F.3d 585, 587-88 (5th Cir. 2012)
(“Magwood holds that when a first habeas petition results in the issuance of a new judgment, a
later-in-time petition challenging that new judgment is not a „second or successive petition‟ under
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[the Antiterrorism and Effective Death Penalty Act]. . . . The phrase appears in both § 2244 and §
2255, and it carries the same meaning in both provisions.”).
In Magwood, the petitioner‟s “new judgment intervening between the two habeas
petitions” was an entirely new sentencing hearing, which was conducted because the petitioner‟s
prior sentence had been vacated pursuant to a habeas petition. 130 S. Ct. at 2793, 2796. Here, the
event which the petitioner labels as an intervening judgment is his Count I sentence reduction
pursuant to 18 U.S.C. §3582(c)(2). Section 3582(c)(2) states:
The court may not modify a term of imprisonment once it has been imposed except
that in the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
18 U.S.C. §3582(c)(2) (emphasis added). The policy statement issued by the Sentencing
Commission that applies to § 3582(c)(2) motions strongly limits the district court‟s role in
modifying sentences under that section:
In determining whether, and to what extent, a reduction in the defendant‟s term of
imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is warranted,
the court shall determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed in
subsection (c) had been in effect at the time the defendant was sentenced. In making
such determination, the court shall substitute only the amendments listed in
subsection (c) for the corresponding guideline provisions that were applied when
the defendant was sentenced and shall leave all other guideline application
decisions unaffected.
U.S.S.G. § 1B1.10(b)(1) (emphasis added). The Supreme Court has clarified,
By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing
proceeding. Instead, it provides for the “modif[ication of] a term of imprisonment”
by giving courts the power to “reduce” an otherwise final sentence in
circumstances specified by the Commission. . . . Section 3582(c)(2)‟s text, together
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with its narrow scope, shows that Congress intended to authorize only a limited
adjustment to an otherwise final sentence and not a plenary resentencing
proceeding.
Dillon v. United States, 560 U.S. 817, 825-26 (2010) (alteration in original) (emphasis added).
Section 3582(b) also states, “Notwithstanding the fact that a sentence to imprisonment can
subsequently be modified pursuant to the provisions of subsection (c) . . . a judgment of conviction
that includes such a sentence constitutes a final judgment for all other purposes.” 18 U.S.C. §
3582. The Fourth Circuit has held this to mean that “later modification [of a sentence under §
3582(c)] does not affect the date on which [a] judgment of conviction became final „for all other
purposes.‟” United States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001). The original conviction
which this Court entered on June 28, 1999, included a “sentence to imprisonment.” Therefore, that
original judgment of conviction “constitutes a final judgment for all other purposes” according to
18 U.S.C. § 3582(b). As a result, the modification of the petitioner‟s sentence pursuant to §
3582(c)(2) is not a “new judgment intervening,” as used in Magwood.2 See id.; United States v.
Samuel, No. CR 3:94-773-JFA, 2011 WL 3703949, at *6 (D.S.C. Aug. 23, 2011).
The Court additionally has considered whether to grant a certificate of appealability. See
28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the
denial of a constitutional right.” Id. at § 2253(c)(2). The Supreme Court has clarified:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner‟s underlying constitutional claim, a [certificate of
appealability] 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
2
The petitioner argues that, given that Magwood post-dates Sanders and was issued by the U.S. Supreme Court,
Sanders cannot modify Magwood. This misunderstands the nature of the Magwood decision. Magwood merely states
that the presence of a new intervening “judgment” in a case means that the first habeas petition filed after such a
judgment is not successive. Magwood does not purport to define the word “judgment” to include mere sentence
modifications under § 3582(c). Thus, “judgment,” as used in Magwood, means what it had earlier already been defined
to mean in Sanders: not a sentence modification under § 3582(c). Magwood simply does not apply to the petitioner‟s
situation.
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district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the petitioner‟s § 2255 motions were both
clearly successive and clearly unauthorized. The Court, thus, concludes that the governing
standard is not satisfied in these cases. Accordingly, the Court DENIES a certificate of
appealability.
III.
Conclusion
Because the petitioner has failed to comply with the requirements of 28 U.S.C. § 2255(h)
by not obtaining authorization from the Fourth Circuit Court of Appeals before filing his
successive § 2255 motions in this District Court, the Court is without jurisdiction to entertain the
motions. Accordingly, the Court ADOPTS the Proposed Findings and Recommendations of the
Magistrate Judge, ECF No. 502, which DENY both of the petitioner‟s Motions to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF Nos. 466 and 470, DENY the
petitioner‟s Application to Proceed Without Prepayment of Fees and Costs, ECF No. 473, DENY
the petitioner‟s Motion to Supplement Additional Grounds, ECF No. 501, and effectively
GRANT the petitioner‟s Letter-Form Motion to Strike his earlier Motion to Supplement
Additional Grounds (ECF No. 498), ECF No. 500. Additionally, the Court DENIES the
petitioner‟s Motion to Appoint Counsel, ECF No. 499, and the Court DENIES a certificate of
appealability.
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The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.
ENTER:
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April 4, 2014
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