Irving v. United States of America

Middle District of Florida, flmd-8:2016-cv-01736

ORDER denying {{2}} --motion to stay; dismissing {{1}} --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to proceed in forma pauperis; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 7/15/2016. (BK)

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PageID 30 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO. 8:91-cr-69-T-23TGW 8:16-cv-1736-T-23TGW DENNIS IRVING / ORDER Irving moves to vacate under 28 U.S.C. § 2255 (Doc. 1) and challenges the validity of his conviction for two counts of bank robbery and two counts of using a firearm during a crime of violence, for which offenses he is imprisoned for 351 months. Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary review of the motion to vacate and a summary dismissal "[i]f it plainly appears from the face of the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief. . . ." Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)* (finding the summary dismissal of a Section 2255 motion was proper "[b]ecause in this case the record, uncontradicted by [defendant], shows that he is not entitled to relief"); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) ("Rule 4(b) [Rules Governing § 2255 Proceedings], allows the district court to summarily dismiss the motion and notify the movant if 'it plainly * Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). PageID 31 appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief. . . .'"). See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir. 1982) (citing Wright and Hart). Irving's motion is barred. Irving challenged this same conviction in an earlier action, 8:93-cv-282-T- 23TGW, which was denied on the merits. (Doc. 112 in 91-cr-69) Irving is precluded from pursuing a second or successive motion without authorization from the Eleventh Circuit Court of Appeals. "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999). This new action is, therefore, a second or successive action that is subject to specific restrictions because a district court lacks jurisdiction to review a second or successive motion without the requisite authorization from the circuit court. Burton v. Stewart, 549 U.S.147, 157 (2007) ("Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a 'second or successive' petition challenging his custody, and so the District Court was without jurisdiction to entertain it."). Irving asserts entitlement to the retroactive application of Johnson v. United States, 135 S. Ct. 2551 (2015). Recently Welch v. United States, 136 S. Ct. 1257 (2016), -2- PageID 32 held that Johnson applies retroactively. As a consequence, Irving's proper remedy is a second or successive motion to vacate under Section 2255(h)(2), which authorizes a second or successive motion under two circumstances, specifically: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain — (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 previously unavailable. Irving's remedy lies in Section 2255(h)(2), but not in a district court, which, as Burton instructs, lacks jurisdiction to review a second or successive motion without the requisite authorization from the circuit court. Irving represents that his request for authorization to file a second or successive motion is pending in the circuit court and, as a consequence, he moves (Doc. 2) the district court to hold in abeyance his present motion. The circuit court has denied Irving's request for leave to file a second or successive motion. In re Dennis Irving, No. 16-13919, (July 11, 2016). (Doc. 5) Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is DISMISSED. The motion (Doc. 2) to stay this action is DENIED. The clerk must close this case. -3- PageID 33 DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS Irving is not entitled to a certificate of appealability ("COA"). A prisoner moving under Section 2255 has no absolute entitlement to appeal a district court's denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a certificate of appealability, Irving must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the motion to vacate is clearly second or successive, Irving is entitled to neither a COA nor leave to appeal in forma pauperis. Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Irving must obtain authorization from the circuit court to appeal in forma pauperis. ORDERED in Tampa, Florida, on July 15, 2016. -4-