United States District Court, N.D. Ohio
RAYMOND M. BINNEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER [RESOLVING DOCS. 58, 60,
S. GWIN, UNITED STATES DISTRICT JUDGE.
November 13, 2015, this Court denied Petitioner Raymond
Binney's 28 U.S.C. § 2255 motion. 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.
core issue is whether Binney's first § 2255 habeas
motion was ripe when this Court denied the petition.
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. §
the plea hearing, the Probation Office prepared a draft
presentence report (“PSR”).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). 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.” Probation did not remove the Enhancement
from the PSR.
final PSR recommended a Guideline range of 210-240
months. The Court applied the five-point
Enhancement, scored Binney's offense level at 37, and
sentenced him to 180 months of incarceration.
lost his direct appeal challenging the Enhancement's
application. He then filed a § 2255 habeas
petition, again challenging the Enhancement. The Court denied
his § 2255 petition.
Binney brings another § 2255 petition, again challenging
this Court's use of the five-point
Enhancement. 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.
a federal prisoner can file a second or successive §
2255 motion to a district court, the Sixth Circuit must
authorize the filing. “[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.” And,
generally, the prohibition on “second or
successive” § 2255 petitions is “virtually
identical” to that on § 2254
threshold matter, the phrase “second or
successive” relates to the judgment
challenged. 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
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
Binney's latest § 2255 motion is a successive
petition. The Sixth Circuit must authorize the petition