United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on petitioner's
“Motion to Vacate, Correct or Set Aside Pursuant to
Title 28 U.S.C. § 2255 in Light of McCarthan v.
Director of Goodwill Industries-Suncoast, Inc., 851 F.3d
1076 (11th Cir. 2017)(En Banc)” (Cv. Doc. #1; Cr. Doc.
#716) filed on July 21, 2017. The government
filed a Response in Opposition to Motion (Cv. Doc. #8) on
September 25, 2017. The petitioner filed a Motion in Reply
(Cv. Doc. #9) on October 10, 2017. The motion is due to be
dismissed as a second or successive petition filed without
was originally indicted in the Middle District of Florida in
2002, and a four-count Superseding Indictment was filed in
2003. Petitioner went to trial, where a jury found him guilty
as to all four counts. (Cr. Doc. #291.) See also Byrd v.
United States, No. 2:02-CV-117-FTM-29DNF, 2008 WL
1897531, at *2 (M.D. Fla. Apr. 25, 2008) (detailing
procedural history); 2:06-cv-517-FTM-29DNF. On August 11,
2003, the Court sentenced petitioner to a term of
imprisonment of 360 months on Counts One and Three, and life
imprisonment on Counts Two and Four, followed by a term of
supervised release. (Cr. Doc. #412.) Judgment (Cr. Doc. #415)
was issued on August 13, 2003.
filed a Notice of Appeal (Cr. Doc. #422). On July 26, 2005,
the Eleventh Circuit reinstated its previous opinion,
affirmed the convictions and sentences, but remanded to
correct a clerical error in the Judgment. United States
v. Byrd, 141 Fed.Appx. 876 (11th Cir. 2005); Cr. Doc.
#625. An Amended Judgment (Cr. Doc. #627) was filed on August
31, 2005, to correct the clerical error.
September 29, 2006, petitioner filed a Motion to Vacate, Set
Aside or Correct and Illegal Sentence and Conviction,
Pursuant to 28 U.S.C. § 2255 (Cr. Doc. #638), which was
denied by Opinion and Order (Cr. Doc. #654) on April 25,
2008. See Byrd v. United States, No.
2:02-CV-117-FTM-29DNF, 2008 WL 1897531, at *2 (M.D. Fla. Apr.
25, 2008); 2:06-cv-517-FTM-29DNF, Cv. Doc. #9 (M.D. Fla.
2008). In this Section 2255 motion, petitioner raised the
following issues: (1) that the government failed to produce
Bradyand Giglio material and failed to
correct false trial testimony; (2) that petitioner was the
target of selective and vindictive prosecution; (3) that
petitioner received ineffective assistance of counsel because
counsel failed to present argument that petitioner does not
have three qualifying prior convictions for an § 851
enhancement to a mandatory life sentence; and (4) petitioner
received ineffective assistance of counsel when counsel
failed to argue that petitioner could not be convicted and
sentenced on Counts Three and Four. Id. at *2.
December 29, 2010, the Court denied a Writ of Audita Querela
(Cr. Doc. #681) without prejudice to seeking permission from
the Eleventh Circuit to file a successive § 2255 motion.
United States v. Byrd, No. 2:02-CR-117, 2010 WL
5463060, at *1 (M.D. Fla. Dec. 29, 2010). On or about January
6, 2010, petitioner filed an application seeking leave to
file a successive motion. (Cv. Doc. #8, ¶ 17.) On
January 31, 2011, the Eleventh Circuit denied
petitioner's application for leave to file a second or
successive motion. See In re: Jimmie Byrd, No.
11-10128-I (11th Cir. Jan. 31, 2011).
a second or successive Motion under Section 2255, petitioner
must obtain certification from the Eleventh Circuit Court of
Appeals. 28 U.S.C. § 2255(h); Gilbert v. United
States, 640 F.3d 1293, 1308 (11th Cir. 2011), cert.
denied, 132 S.Ct. 1001 (2012). Petitioner did file an
application for certification in the past, however the
request was denied. There is no indication petitioner has
since sought or obtained such certification from the Eleventh
Circuit. In the absence of an order authorizing the
undersigned to consider a second or successive motion, the
current Motion must be dismissed for lack of jurisdiction on
this basis. Farris v. United States, 333 F.3d 1211,
1216 (11th Cir. 2003); El-Amin v. United States, 172
F. App'x 942, 946 (11th Cir. 2006).
issues raised by petitioner in his current petition are: (1)
Whether his constitutional rights were violated by imposition
of a minimum mandatory sentence of life pursuant to 21 U.S.C.
§ 851(a); and (2) Whether the conviction and mandatory
life sentence must be vacated because 21 U.S.C. § 841(a)
is unconstitutional because it fails to include the penalties
in § 841(b) as an element. Petitioner acknowledges that
the motion is successive. Petitioner argues, however, that
the bar on the filing of successive petitions is
unconstitutional. The Court disagrees.
outlined above, petitioner previously sought relief under
Section 2255, which relief was denied. Petitioner argues that
the restrictions on the filing of a second and successive
Section 2255 motion are unconstitutional under
McCarthan, and therefore the merits should be
considered. Nothing in McCarthan even suggests that
the § 2255(h) restriction is unconstitutional. This
requirement under Section 2255(h) would become a
“nullity” if petitioner could simply circumvent
the bar on successive petitions, McCarthan, 851 F.3d
at 1091, and the Eleventh Circuit continues to require
section 2255(h) authorization after McCarthan, see,
e.g., In re Hernandez, 857 F.3d 1162, 1163
(11th Cir. 2017) (denying an application for leave to file a
second or successive § 2255 based on Johnson v.
United States, 135 S.Ct. 2551 (2015)).
petitioner has failed to comply with § 2255(h), this
court has no jurisdiction to entertain his current petition.
The motion will be dismissed.
it is hereby