United States District Court, S.D. Illinois
GREGORY A. COLLINS, Petitioner,
UNITED STATES OF AMERICA Respondent.
MEMORANDUM AND ORDER
R. HERNDON, UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Gregory A. Collins' June
23, 2016, 28 U.S.C. § 2255 petition (Doc. 1). This is
not Collins' first 2255 petition. On February 25, 1998,
Collins filed a § 2255 petition. See Collins v.
USA, 98-cv-00156-WDS (Doc. 1). On September 18, 1998,
District Judge William D. Stiehl granted in part and denied
in part Collins' petition and judgment was entered
(Id. at Docs. 9 & 10). Thereafter, Collins appealed
to the Seventh Circuit Court of Appeals. (Id. at
Doc. 13). On April 9, 2003, the Seventh Circuit issued its
Mandate dismissing Collins' appeal. (Id. at Doc.
Collins previously filed a § 2255 petition, his current
motion is a “second or successive motion” within
the meaning of § 2255(h), which says that “[a]
second or successive motion must be certified as provided in
[28 U.S.C. § ] 2244 by a panel of the appropriate court
of appeals” before it may be allowed to proceed. 28
U.S.C. § 2255(h). “From the district court's
perspective, [ § 2244(b) ] is an allocation of
subject-matter jurisdiction to the court of appeals. A
district court must dismiss a second or successive petition,
without awaiting any response from the government, unless the
court of appeals has given approval for its filing.”
Nunez v. United States, 96 F.3d 990, 991 (7th Cir.
1996); see also 7th Cir. Rule 22.2 (providing a procedure for
prisoners to seek leave to file a successive motion under
§ 2255); Melton v. United States, 359 F.3d 855,
856-57 (7th Cir. 2004) (the petitioner's
“application in 1997 used up the only collateral attack
allowed as of right, and the district court thus lacks
jurisdiction to entertain any further collateral proceedings
unless this court first grants permission under § 2244
and § 2255 ¶ 8”) (citation omitted).
authorization, Collins requested that his second § 2255
case be stayed pending approval from the Seventh Circuit,
thus allowing him to comply with the Johnson v. United
States, 135 S.Ct. 2551 (2015) one-year filing deadline
(Doc. 1). However, on July 20, 2016, the Seventh Circuit
issued an order that states the following:
Gregory Collins has filed an application pursuant to 28
U.S.C. § 2244(b)(3), seeking authorization to file a
successive motion to vacate under § 2255. Collins wants
to challenge his sentence under Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
residual clause of the Armed Career Criminal Act is
unconstitutionally vague. But Collins was not sentenced as
either an armed career criminal or a career offender.
Collins's sentence was enhanced under 21 U.S.C. §
841(b)(1)(A) for previously having been convicted of a felony
drug offense, but Johnson has no conceivable relation to this
statutory enhancement. Collins does not identify any other
way in which either his conviction or sentence might be
affected by Johnson.
Collins has not made a prima facie showing that his sentence
violates Johnson. Accordingly, we DENY authorization
and DISMISS Collins's application.
Collins v. United States, No. 16-2662 (7th Cir. July
20, 2016). Obviously, this does not constitute authorization
from the Seventh Circuit Court of Appeals.
this Court cannot provide Collins with the authorization to
proceed with this 2255 petition. Thus, the Court dismisses
for lack of subject matter jurisdiction Collins'
to Rule 11(a) of the Rules Governing § 2255 Proceedings,
this Court denies a certificate of appealability in this
case. “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner's
underlying constitutional claim, ” which has happened
here, a certificate of appealability should issue only when
the prisoner shows both “that jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling, ” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
This court concludes that jurists of reason would not find it
debatable whether petitioner's motion states a valid
claim of the denial of a constitutional right and also
concludes that jurists of reason would not find it debatable
whether this court correctly found it lacks jurisdiction over
petitioner's motion because it is a second or successive
motion pursuant to § 2255.
the Court DISMISSES for lack of jurisdiction Collins' 28
U.S.C. § 2255 petition and DECLINES to issue a
certificate of appealability. The Clerk is instructed to
close the file and enter judgment accordingly.
 The § 2255 motion was granted as
to count 2 only, and the conviction and sentence on count 2
in case number 91-30018-WDS were vacated and set aside.
Collins' sentence of life without parole on counts 1 and
12, and 240 months on count 13, to be served concurrently