Willis v. United States

• Court: District Court, W.D. Tennessee
• Decided: January 14, 2020
• Docket: 2:19-cv-02884
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

NANCY WILLIS, ) ) Movant, ) ) v. ) No. 2:19-cv-02884-TLP-tmp ) UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER TRANSFERRING SUCCESSIVE § 2255 PETITION TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AND CLOSING CASE

Movant Nancy Willis1 sues pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. (ECF No. 1). This is her third § 2255 Petition on this case. For the following reasons, the Court TRANSFERS this successive § 2255 Petition to the Sixth Circuit Court of Appeals and directs the Clerk to close this case without entry of judgment. BACKGROUND I. Criminal Case, No. 2:04-cr-20314-SHM-01 A federal grand jury in the Western District of Tennessee returned a seventeen-count second superseding indictment against Willis in March 2005.2 After trial, a jury convicted Willis of robbing seven women’s clothing stores in or near Memphis, Tennessee between July 2003 and July 2004. (See ECF Nos. 108 & 109.) The Court then sentenced Willis to serve 160 years in

1 Willis is a federal prisoner, Bureau of Prisons registration number 19840-076. The federal government is housing her currently at the Federal Medical Center Carswell in Fort Worth, Texas. 2 Willis’s co-defendant was Vickie Herron. See No. 2:04-cr-20314, ECF No. 51. prison. (See ECF Nos. 125 & 127.) The Sixth Circuit affirmed Willis’s convictions and sentences. United States v. Willis, 232 F. App’x 527, 529–32 (6th Cir. 2007). II. First § 2255 Motion In 2010, Willis filed the first § 2255 Motion in her criminal case alleging that her

convictions were invalid under Bailey v. United States, 516 U.S. 137 (1995) and United States v. O’Brien, 560 U.S. 218 (2010). (See No. 2:04-cr-20314, ECF No. 160.) The Court denied Plaintiff’s motion (ECF No. 161), and the Sixth Circuit Court of Appeals denied a certificate of appealability (ECF No. 168). III. Second Habeas Petition, Case No. 19-2680 Willis filed her second § 2255 motion in June 2016. (See No. 2:16-cv-2405-TLP-tmp, ECF No. 1.) She alleges that: 1. Her sentence violates the holding of Johnson v. United States, 135 S. Ct. 2551 (2015) (id. at PageID 4)

2. Willis was sentenced by the judge and not a jury (id. at PageID 5)

3. Trial counsel provided ineffective assistance by failing to file a motion for severance (id. at PageID 7); and

4. Willis’s sentence was unduly harsh (id. at PageID 8).

In February 2019, this Court denied Willis’s second § 2255 Motion (ECF No. 14) and entered a judgment accordingly (ECF No. 15). ANALYSIS On December 23, 2019, Willis filed the instant motion—her third § 2255 Motion. (See No. 2:19-cv-2884-TLP-tmp, ECF No. 1.) This Court lacks the authority to decide this Motion because the Sixth Circuit Court of Appeals has not approved its filing. 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A). Under In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam), “when 2 a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3) authorization from [the Sixth Circuit], the district court shall transfer the document to [the Sixth Circuit] pursuant to 28 U.S.C. § 1631.” See Moreland v. Robinson, 813 F.3d 315, 325 (6th Cir. 2016) (“[T]he district court should have transferred those motions

here for processing as requests for permission to present claims in a second or successive habeas petition”). This Court therefore ORDERS, under In re Sims, that the Clerk transfer this motion to the United States Court of Appeals for the Sixth Circuit. The Court further DIRECTS the Clerk to close this case without entry of a judgment. SO ORDERED, this 14th day of January, 2020. s/Thomas L. Parker THOMAS L. PARKER UNITED STATES DISTRICT JUDGE