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Barrett v. United States

United States District Court, S.D. Ohio, Eastern Division

July 10, 2019

ANTHONY C. BARRETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ALGENON L. MARBLEY JUDGE.

          ORDER AND REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers Chief United States Magistrate Judge.

         Petitioner, 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.

         This 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 as successive.

         I. FACTS AND PROCEDURAL HISTORY

         On 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.)

         On June 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.)

         II. ANALYSIS

         As discussed, this is not Petitioner's first motion under 28 U.S.C. § 2255.

         Before 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).

         Because 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.

         The 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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