United States District Court, S.D. Ohio, Eastern Division
ANTHONY C. BARRETT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ALGENON L. MARBLEY JUDGE.
ORDER AND REPORT AND RECOMMENDATION
Elizabeth A. Preston Deavers Chief United States Magistrate
a federal prisoner, has filed this Motion to Vacate under 28
U.S.C. § 2255. (ECF No. 182.) This case has been
referred to the Undersigned pursuant to 28 U.S.C. §
636(b) and Columbus' General Order 14-1 regarding
assignments and references to United States Magistrate
Judges. As a preliminary matter, Petitioner's Motion to
Amend (ECF No. 183) hereby is GRANTED.
matter is before the Court on its own motion under Rule 4(b)
of the Rules Governing Section 2255 Proceedings in the United
States District Courts. For the reasons that follow, the
Undersigned RECOMMENDS that the Motion to
Vacate and Amended Motion to Vacate under 28 U.S.C. §
2255 (ECF Nos. 182 and 183) be TRANSFERRED
to the United States Court of Appeals for the Sixth Circuit
FACTS AND PROCEDURAL HISTORY
August 19, 2011, Petitioner pleaded guilty pursuant to the
terms of his negotiated Plea Agreement to Counts 2 and 4 of
the Indictment, charging him with armed bank robbery and
possession of a firearm in and affecting commerce by a person
convicted of at least three prior violent felony offenses.
(ECF Nos. 48, 52.) On December 14, 2011, Judgment was entered
sentencing Petitioner to an aggregate term of 228 months
imprisonment, to be followed by five years supervised
release. (ECF No. 76.) On December 7, 2012, Petitioner filed
his first motion under 28 U.S.C. § 2255. (ECF No. 96.)
On January 14, 2014, the Court dismissed that action. (ECF
No. 123.) On April 1, 2015, the United States Court of
Appeals for the Sixth Circuit denied the application for a
certificate of appealability. (ECF No. 133.) On September 4,
2015, Petitioner filed his second motion under 28 U.S.C.
§ 2255. (ECF No. 136.) On November 13, 2015, the Court
transferred that action to the Sixth Circuit as successive.
(ECF No. 139.) On August 24, 2016, the Sixth Circuit granted
Petitioner authorization for the filing of a successive
§ 2255 action under Johnson v. United States,
__U.S.__, 135 S.Ct. 2551 (2015). (ECF No. 153.) On April 25,
2017, the Court dismissed that action. (ECF No. 168.) On
November 15, 2018, the Sixth Circuit affirmed the dismissal
of Petitioner's second motion under 28 U.S.C. §
2255. (ECF No. 178.) On May 13, 2019, the United States
Supreme Court denied the petition for a writ of
certiorari. (ECF No. 181.)
26, 2019, Petitioner filed this, his third Motion to Vacate
under 28 U.S.C. § 2255. (ECF No. 182.) He asserts that
his is actually innocent of his conviction in Count 4 on
possession of a firearm by a person with three prior felony
offenses, and that he was improperly sentenced under the
Armed Career Criminal Act (“ACCA”), because he
does not have three qualifying prior predicate violent
felonies, and that he is entitled to be released under
provisions of the First Step Act (claim one); that the Court
unconstitutionally sentenced him beyond the statutory maximum
for the offenses charged (claim two); that he is currently
unlawfully incarcerated based on a fundamental miscarriage of
justice, because he was sentenced outside of the statutory
maximum range, and has been denied relief based on a silent
record (claim three); and that his sentence violates the
terms of his Plea Agreement (claim four). Petitioner has also
filed a Motion to Amend. In his Amended Petition, he
additionally asserts that he is actually innocent of his
conviction under 18 U.S.C. § 924(e)(1), and 18 U.S.C.
§ 924(g), in view of Rehaif v. United States,
__U.S.__, 139 S.Ct. 2191 (2019). (See ECF No. 183.)
discussed, this is not Petitioner's first motion under 28
U.S.C. § 2255.
a successive motion to vacate under 28 U.S.C. § 2255 can
be filed in a district court, the applicant must move in the
appropriate circuit court of appeals for an order authorizing
the district court to consider the application. 28 U.S.C.
§§ 2244(b)(3)(A), 2255(h). Where a district court
determines that a motion to vacate constitutes a successive
motion, see In re Smith, 690 F.3d 809 (6th Cir.
2012), that court lacks jurisdiction to entertain the motion
to vacate unless the court of appeals has authorized the
filing. Absent that approval, a district court in the Sixth
Circuit must transfer the motion to vacate to the United
States Court of Appeals for the Sixth Circuit. In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).
petitioner filed two earlier motions to vacate, the Motion to
Vacate under 28 U.S.C. § 2255 presently before the Court
constitutes a successive motion to vacate within the meaning
of 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). This Court
must therefore transfer the matter to the Sixth Circuit for
authorization for filing.
Court of Appeals will grant leave to file a successive motion
to vacate only if the motion presents
(1) newly discovered evidence that, if proven and viewed in
light of the 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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was