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Binney v. United States

United States District Court, N.D. Ohio

May 23, 2017

RAYMOND M. BINNEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER [RESOLVING DOCS. 58, 60, 63]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE.

         On November 13, 2015, this Court denied Petitioner Raymond Binney's 28 U.S.C. § 2255 motion.[1] Now, Binney has filed an additional § 2255 motion. Because the Court finds that Binney's motion is a successive petition, the Court TRANSFERS the motion to the United States Court of Appeals for the Sixth Circuit.

         I. Background

         The core issue is whether Binney's first § 2255 habeas motion was ripe when this Court denied the petition.

         On July 11, 2012, Binney pled guilty to receipt and distribution of visual depictions of minors engaged in sexually explicit conduct, a violation of 18 U.S.C. § 2252(a)(2).[2]

         After the plea hearing, the Probation Office prepared a draft presentence report (“PSR”).[3]Plaintiff objected pro se to the PSR's inclusion of a five-point sentencing enhancement (the “Enhancement”) under U.S.S.G. § 2G2.2(b)(3)(B).[4] Courts apply this Enhancement in child Gwin, J. pornography cases when the offense involved “distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.”[5] Probation did not remove the Enhancement from the PSR.

         The final PSR recommended a Guideline range of 210-240 months.[6] The Court applied the five-point Enhancement, scored Binney's offense level at 37, and sentenced him to 180 months of incarceration.[7]

         Binney lost his direct appeal challenging the Enhancement's application.[8] He then filed a § 2255 habeas petition, again challenging the Enhancement.[9] The Court denied his § 2255 petition.[10]

         Now, Binney brings another § 2255 petition, again challenging this Court's use of the five-point Enhancement.[11] As a threshold matter, Binney says his instant § 2255 is not a successive petition because his first § 2255 was unripe. Binney reasons his first § 2255 petition was unripe because the U.S. Sentencing Commission issued a clarifying amendment (the “Amendment”) regarding the Enhancement after Binney filed his first § 2255.[12]

         II. Legal Standard

         Before a federal prisoner can file a second or successive § 2255 motion to a district court, the Sixth Circuit must authorize the filing.[13] “[C]ourts have not, however, construed ‘second or successive' to encompass all § 2255 motions or habeas petitions that are ‘numerically' second in the sense that they are literally the second motion filed.”[14] And, generally, the prohibition on “second or successive” § 2255 petitions is “virtually identical” to that on § 2254 filings.[15]

         As a threshold matter, the phrase “second or successive” relates to the judgment challenged.[16] If a petitioner therefore seeks to challenge the same judgment already the subject of a § 2255 petition, his petition must either (a) fall within an exception to the ban on second and successive petitions or (b) receive authorization from the court of appeals.[17]

         In general, exceptions to second and successive petitions ban exist only in narrow circumstances, including when a petitioner's claim is unripe at the time he filed his first petition.[18]

         III. Analysis

         Petitioner Binney's latest § 2255 motion is a successive petition. The Sixth Circuit must authorize the petition ...


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