MEMORANDUM & ORDER
WILLIAM D. STIEHL, District Judge.
Before the Court is petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court has completed a review of the motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
In 2001, petitioner was convicted by a jury of conspiracy to distribute cocaine, and of being a felon in possession of a firearm. On June 25, 2001, petitioner was sentenced to 300 months of imprisonment for conspiracy to possess with intent to distribute cocaine, and a concurrent term of 120 months for the firearm offense. The conviction was affirmed on direct appeal. United States v. Suggs, 59 F.Appx. 818 (7th Cir. 2003). After his initial sentencing, petitioner filed his first § 2255 habeas petition alleging, among other things, ineffective assistance based on his attorney's failure, on appeal, to challenge information used to enhance his Sentencing Guideline range (Case No. 3:04-cv-730-WDS). This Court dismissed the petition, but the Seventh Circuit found merit in his claim, and remanded the case for resentencing. Suggs v. United States, 513 F.3d 675 (7th Cir. 2008). Petitioner was resentenced to 240 months for the drug offense, and a concurrent term of 120 months for the firearm offense.
On August 20, 2009, Suggs submitted to the Seventh Circuit Court of Appeals, an application pursuant to 28 U.S.C. § 2244(b)(3), seeking permission to file a successive collateral attack on his conviction based on a claim that he had new evidence that he was innocent of the drug offense. The Seventh Circuit denied Suggs' request as follows:
He claims to have new evidence that he is actually innocent of the drug offense; namely, a notarized affidavit by John Ellebracht, the government's primary witness and a member of the drug-trafficking conspiracy, that contrary to his trial testimony Suggs was not the intended recipient of the drugs he (Ellebracht) was caught delivering. Additionally, Suggs contends that the government did not disclose Ellebracht's initial statement to police, which, according to Suggs, was consistent with the recent affidavit.
Initially, Suggs has not filed a motion under § 2255 to vacate his new sentence, but his proposed claims attack only his conviction. Because Suggs has already received collateral review of his conviction and the new judgment changed only his sentence, Suggs requires this court's permission to proceed. Dahler v. United States, 259 F.3d 763, 765 (7th Cir. 2001).
But Ellebracht's recantation - which comes eight years after trial and long after Ellebracht received whatever benefit he got in exchange for his co-operation - simply does not come close to showing that no reasonable factfinder would have found him guilty as required for authorization, 28 U.S.C. § 2244(b)(2)(B). See Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) ("To demonstrate innocence so convincingly that no reasonable jury could convict, a prisoner must have documentary, biological (DNA), or some other powerful evidence."). In short, Ellebracht's recantation is not "powerful evidence." Accordingly, we deny Suggs' request for authorization to file a successive collateral attack.
Suggs v. United States, No. 09-3070 (7th Cir. August 27, 2009).
Despite the Seventh Circuit's denial, petitioner brought a second habeas petition pursuant to § 2255, claiming that he is "actually innocent" of Count I based on "new evidence, " i.e., the Ellebracht affidavit. Petitioner had been denied permission from the Court of Appeals to file the successive petition, and, accordingly, this Court dismissed it for lack of jurisdiction (Case No. 3:09-cv-00775-WDS, Doc. 11). Petitioner appealed this Court's dismissal, and the Seventh Circuit affirmed, noting that Suggs' motion challenged the underlying conviction, and not the resentencing, rendering it successive to the first motion, which he had been denied permission to file. Suggs v. United States, 705 F.3d 279, 285 (7th Cir. 2013).
Currently before the Court is Suggs' third attempt at a motion pursuant to 28 U.S.C. § 2255. Petitioner again seeks to set aside his conviction based on the same Ellebracht affidavit he cited in his previous § 2255 action. His current claim of actual innocence is virtually identical in form and substance to the claim he alleged in his previous case. As in his previous case, petitioner attempts to make a constitutional claim by stating that he was denied his rights to a fair trial and due process due to the government's withholding of material evidence. He essentially attempts to state a Brady violation, claiming that the government knew that petitioner was "not involved" with the crime, and that the government encouraged Ellebracht to implicate petitioner as the intended recipient of the drugs. Petitioner also claims that the government failed to inform him of Ellebracht's initial statements in which Ellebracht stated that the drugs belonged to him, the funds used to purchase the drugs were his own, and that petitioner was not the intended recipient of the drugs.
The sole difference in petitioner's third filing is his "jurisdictional statement, " in which he attempts to highlight the fact that his "actual innocence" claim is the gateway through which his § 2255 petition may pass, even though it may otherwise be procedurally barred. Petitioner relies on the recent Supreme Court case, McQuiggin v. Perkins, 133 S.Ct. 1924, (May 28, 2013), to support his assertion.
Generally, district courts lack jurisdiction to hear second or successive habeas petitions under § 2255. Curry v. United States, 507 F.3d 603, 605 (7th Cir. 2007). Although § 2255 gives jurisdiction over first habeas petitions to the district courts, it states, A[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals...." 28 U.S.C. § 2255(h). Petitioner was previously denied such certification from the Seventh Circuit, based on his submission of the exact same claim he now asserts. Suggs v. United States, No. 09-3070 (7th Cir. August 27, 2009). Petitioner now contends, however, that certification from the Court of Appeals is not ...