In re Jones

830 F.3d 1295, 2016 U.S. App. LEXIS 13689, 2016 WL 4011143

Opinions

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Kiwanis Jones has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(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 eases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

In his counseled application, Jones indicates that he wishes to raise one claim in a second or successive § 2255 motion. Jones asserts that his claim relies upon a new rule of constitutional law, and he cites Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague, and Welch v. United States, 578 U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), in which the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Jones asserts that his sentence, enhanced as a career offender under the residual clause of the Sentencing Guidelines, violates due process. Jones argues that his prior conviction for third-degree escape is no longer a predicate offense under the Guidelines because the residual clause is invalid in light of Johnson.

On June 10, 2016, Jones filed an application seeking leave to raise two claims, one of which was a nearly identical Johnson-based challenge to his status as a career offender. On July 7, 2016, we denied the application, in relevant part, because the Sentencing Guidelines — whether advisory or mandatory- — cannot be unconstitutionally vague.

Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under [28 U.S.C] section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). We have held that § 2244(b)(l)’s mandate applies to applications for leave to file a second or successive § 2255 motion. In re Baptiste, No. 16-13959, 828 F.3d 1337, 1339-40, 2016 WL 3752118 (11th Cir. July 13, 2016). We also have held that a prisoner may not file “what amounts to a motion for reconsideration under the guise of a separate and purportedly ‘new¹ application” when the new application raises the same claim that was raised and rejected in the prior application. Id., 828 F.3d at 1340. Thus, we reject Jones’s application because the claim in his instant application was raised and rejected on the merits in a prior application. See id., 828 F.3d at 1339-41. Accordingly, Jones’s application for leave to file a second or successive motion to vacate is hereby DENIED.

Footnotes

1

. Alexander Pope, “Essay on Criticism,” Part 2 (reprinted at http://www.poetryfoundation. org/resources/learninsfessays/detail/69379 (last visited July 15, 2016).