United States District Court, S.D. Illinois
M. YANDLE UNITED STATES DISTRICT JUDGE
August 30, 2007, a jury convicted Defendant Montez L. Fuller
on two counts of armed bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d), and two counts of using a firearm
during a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(ii). He was subsequently sentenced to a term of
564 months' incarceration followed by 5 years' of
supervised release. His conviction was upheld by the Seventh
Circuit Court of Appeals on direct appeal. United States
v. Fuller, 306 Fed.Appx. 297 (7th Cir. 2009). The United
States Supreme Court denied certiorari on April 20, 2009.
Fuller v. United States, 129 S.Ct. 2037 (2009).
Thereafter, Fuller unsuccessfully moved for a new trial
(Docs. 403, 425) and filed a Motion to Vacate, Set Aside or
Correct Sentence (2255) on April 12, 2010. Fuller v.
USA, 10-cv-267-DRH. The §2255 Motion was denied on
May 22, 2012 (Doc. 28 in 10-cv-267) and on appeal.
Fuller's attempt to file a successive § 2255 motion
was dismissed for lack of jurisdiction on October 4, 2017
(Id. Doc. 65).
pending before this Court are Fuller's Motion to Reduce
Sentence (Doc. 559), Motion to Vacate (Doc. 563), and Motion
to Set Aside Judgment (Doc. 585). The Government filed a
response to the first two motions (Doc. 576). For the
following reasons, all three Motions are
DISMISSED for lack of jurisdiction.
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.” A preliminary review of Fuller's Motions
reveals that they are in fact motions filed pursuant to
§ 2255 that 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 Motions are his
third, fourth, and fifth attempt at relief under § 2255
and therefore require prior approval from the Seventh
Circuit. Because there is no indication that Fuller has
sought permission from the Seventh Circuit to file a second
or successive § 2255 petition, 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, Fuller's Motions to Vacate, Set
Aside, or Correct Sentence (Docs. 559, 563, and 585) are
dismissed for lack of jurisdiction.
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.
Fuller did not obtain leave to file a successive § 2255
petition. Accordingly, he is not entitled to issuance of a
certificate of appealability.