United States v. Porter

• Court: District Court, District of Columbia
• Decided: September 2, 2009
• Docket: Criminal No. 1993-0315
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) ) ) Criminal Acti0n No. 93-315-03(RCL) v. ) ) t JEROME A. PORTER, ) F m L E D ) SEP ~ 2 2009 Defendant. ) NGTON CLERK "Tl . ’ “"“°'l"f§‘_`i§l§’"r§'lé¢@@m MEMORANDUM

Defendant Jerome Porter’s petition for leave to file a motion under 28 U.S.C. § 2255 is before this Court. For the following reasons Mr. Porter’s motion is transferred to the Court of Appeals for consideration.

Mr. Porter previously filed a § 2255 motion on January 15, 1999. Dkt. 178. This Court’s denial was subsequently affirmed by the Court of Appeals. Um`ted States v. Porter, 2003 WL l79852, at *l (D.C. Cir. January 24, 2003). As such, Mr. Porter’s petition is a second or successive petition and prior to consideration by this Court, his motion must be certified by a panel of the Court of Appeals. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). As no such certification has been obtained, this Court lacks jurisdiction to consider Mr. Porter’s motion. Burton v. Stewart, 549 U.S. 147, 157 (2007); M00re v. Dep ’t of Justice, No. 98-5085, 1998 WL 54542l, at *l (D.C. Cir. July 17, 1998); Judson v. Um'ted States, No. 97-5140, 1998 WL 3l5593, at *1 (D.C. Cir. May 29, 1998); see also Farris v. United States, 333 F.3d 121 l, 1216 (l lth Cir. 2003). The Court thinks the appropriate action is then to transfer the petition to the Court of

Appeals for their consideration. Cephas v. Nash, 328 F.3d 98, 104 n.5 (2d Cir. 2003); see also

Harris v. United States, 522 F. Supp. 2d 199, 203 (D.D.C. 2007); see also Liriano v. United States, 95 F.3d 119, 123 (2nd Cir. 1996) (per curiam); In re Sims, 111 F.3d 45, 47 (6th Cir. l997); Colemarz v. United States, 106 F.3d 339, 340-41 (10th Cir. 1997).

Notwithstanding the transfer to the Court of Appeals, it is unlikely defendant’s claim will prevail. ln Blakely v. Washington, 542 U.S. 296 (2004), the U.S. Supreme Court held that the Sixth Amendment prohibits judges from enhancing criminal sentences based on facts that are not decided by a jury or admitted by the defendant. However, this Circuit has held that United States v. Booker, 543 U.S. 220 (2005), which applied the Blakely rule to the federal sentencing guidelines, is not retroactively applicable to cases on collateral review. See In re Fashina, 486 F.3d 1300, 1306 (D.C. Cir. 2007);111 re Zambrano, 433 F.3d 886, 888 (D.C. Cir. 2006).

As such, it is hereby ordered that Mr. Porter’s § 2255 motion be transferred to the Court of Appeals for their consideration as to whether it meets the standards set for under 28 U.S.C § 2244.

A separate order shall issue this date.

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ROY@E c. LAMBERTH Chief Judge United States District Court