United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
March of 2005, a jury convicted Petitioner Steve Jones of one
count of conspiracy to distribute 50 or more grams of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count 1), and one count of sale of a firearm to a known
felon in violation of 18 U.S.C. §§ 2 and 922(d)(1)
(Count 2). See United States v. Poenitske et al.,
Case No. 02-CR-30145-WDS. Petitioner was sentenced to
concurrent sentences of 360 months in prison on Count 1 and
120 months on Count 2. He appealed, but his appellate counsel
filed a motion to withdraw because she could not discern any
nonfrivolous arguments. The Seventh Circuit granted her
motion to withdraw and dismissed the appeal in United
States v. Jones, No. 05-3881, 2007 WL 1046515 (7th Cir.
2007). Petitioner then filed a habeas petition under 28
U.S.C. § 2255, asserting ineffective assistance of
counsel (Doc. 1). On September 27, 2011, this Court denied
Petitioner's § 2255 petition (Doc. 25) and denied
his request for a certificate of appealability (Doc. 31).
Petitioner appealed to the Seventh Circuit, which affirmed
this Court's denial of Petitioner's § 2255
petition on June 4, 2012 (Doc. 44).
four years later, Petitioner filed his Motion for Procedural
Relief (Doc. 46) asserting claims for ineffective assistance
of counsel. Petitioner also filed a Motion to Appoint Counsel
(Doc. 47) and a Motion to Supplement his 28 U.S.C. §
2255 Motion as a Second or Successive Motion Authorized by
the Seventh Circuit (Doc. 48).
Rule 4(b) of the Rules Governing § 2255 Proceedings in
the United States District Courts, a judge receiving a §
2255 petition must conduct a preliminary review and,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving
party.” Here, a preliminary review of Petitioner's
motions show that they must be dismissed as unauthorized
second or successive habeas petitions.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) “governs § 2255 proceedings
and imposes tight limits on second or successive
petitions.” Vitrano v. United States, 721 F.3d
802, 806 (7th Cir. 2013) (citing Suggs v. United
States, 705 F.3d 279, 285 (7th Cir. 2013)).
Specifically, AEDPA “allows every prisoner one full
opportunity to seek collateral review.”
Vitrano, 721 F.3d at 806 (quoting Johnson v.
United States, 196 F.3d 802, 805 (7th Cir. 1999)). Any
additional, later-filed petition under 28 U.S.C. § 2255
is a “second or successive” motion, which a
district court may not entertain “unless the prisoner
has first obtained authorization to file from the court of
appeals.” United States v. Obeid, 707 F.3d
898, 901 (7th Cir. 2013) (citing 18 U.S.C. §§
previously filed a § 2255 petition and received a full
round of collateral review. The instant habeas petition is
his second and third attempts at relief under § 2255,
which require prior approval from the Seventh Circuit. There
is no indication, however, that Petitioner has sought
permission from the Seventh Circuit to file successive §
2255 petitions. Therefore, this Court is without jurisdiction
to consider the pending motions and they must be dismissed.
Obeid, 707 F.3d at 901 (citing Nuñez v.
United States, 96 F.3d 990, 991 (7th Cir. 1996)).
Accordingly, Petitioner's Motion for Procedural Relief
(Doc. 46), Motion to Appoint Counsel (Doc. 47), and Motion to
Supplement his 28 U.S.C. § 2255 Motion as a Second or
Successive Motion Authorized by the Seventh Circuit (Doc. 48)
11(a) of the Rules Governing Section 2254 Proceedings
instructs the district court to “issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” A certificate of
appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). To meet this
requirement, the petitioner must “demonstrate that
reasonable jurists would find the district court's
assessment of his constitutional claims debatable or
wrong.” United States v. Fleming, 676 F.3d
621, 625 (7th Cir. 2012) (quoting Tennard v. Dretke,
542 U.S. 274, 281 (2004)). The petitioner need not show that
his appeal will succeed, but he must show “something
more than the absence of frivolity” or the existence of
mere “good faith” on his part.
Miller-El, 537 U.S. at 337, 338.
Petitioner did not obtain leave to file a successive §
2255 petition. Accordingly, he is not entitled to issuance of
a certificate of appealability.