United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
March 9, 2012, Petitioner, Alhadi Armstrong, was sentenced to
105 months imprisonment following a plea of guilty to his
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). (ECF No. 1 at 2-3).
April 1, 2013, Petitioner filed a motion to vacate his
sentence on that charge. (Id. at 3). This Court
denied that motion on the merits by way of an order and
opinion issued on July 6, 2015. (Id.).
June 23, 2016, Petitioner filed in this Court a second motion
to vacate sentence in which he argued that he was improperly
sentenced under the Career Offender Guideline based on the
Supreme Court's decision in Johnson v. United
States, --- U.S. ---, 135 S.Ct. 2551 (2015). (ECF No.
1). On that same day, Petitioner filed with the Third Circuit
a petition for leave to file a second or successive motion to
vacate sentence pursuant to 28 U.S.C. §§ 2255(h)
and 2244(b). (See In re Armstrong, Third Circuit
Docket No. 16-2876).
May 26, 2017, the Third Circuit denied Petitioner's
petition for leave to file a second or successive motion to
vacate sentence, ruling as follows:
Petitioner's application under 28 U.S.C. §§
2244 and 2255(h) for leave to file a second or successive
§ 2255 motion is denied. Petitioner was sentenced under
the advisory Sentencing Guidelines. In his §
2244/2255(h) application, he initially sought leave to
challenge his sentence on the ground that the definition of
“crime of violence” contained in the residual
clause of U.S.S.G. § 4B1.2(a) is unconstitutionally
vague. Petitioner relied for that proposition on Johnson
v. United States, 135 S.Ct. 2551 (2015), and he argued
that Johnson constitutes a “new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2). The Supreme
Court, however, has since held that the analysis in
Johnson does not apply to the advisory Sentencing
Guidelines and that, as a result, “§
4B1.2(a)'s residual clause is not void for
vagueness.” Beckles v. United States, 137
S.Ct. 886, 897 (2017). Thus, petitioner has not made a prima
facie showing that his proposed § 2255 motion satisfies
the § 2255(h) standard because, under Beckles,
Johnson did not announce a new rule of
constitutional law invalidating § 4B1.2(a)'s
residual clause. Petitioner also has not responded to the
Clerk's order to show cause why his application should
not be denied in light of Beckles.
(See In re Armstrong, Third Circuit Docket No.
16-2876 at Document No. 003112636745 at 1-2).
Petitioner has filed motion to vacate his sentence and as the
Third Circuit has now ruled upon his request for leave to
file a successive § 2255 motion, this Court is required
to preliminarily review Petitioner's current motion
pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings, and “dismiss the motion” if it
“plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” Pursuant to this
rule, a district court is “authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. §§ 2244(b) and 2255(h), a
petitioner may not file a second or successive motion to
vacate sentence in this Court without first acquiring
authorization from the appropriate Court of Appeals. Absent
authorization from the Court of Appeals, this Court has no
jurisdiction over a second or successive motion to vacate
sentence. Robison v. Johnson, 313 F.3d 128, 139 (3d
Cir. 2002); Blystone v. Horn, 664 F.3d 397, 412 (3d
Cir. 2011) (a “petitioner's failure to seek
authorization from the appropriate appellate court before
filing a second or successive habeas petition acts as a
jurisdictional bar”). When “a second or
successive habeas petition is erroneously filed in a district
court without the permission of a court of appeals, the
district court's only option is to dismiss the petition
or transfer it to the court of appeals.”
Robinson, 313 F.3d at 139.
this matter, Petitioner sought, and was denied, leave to file
a second or successive motion to vacate sentence by the Third
Circuit. As such, this Court is without jurisdiction to
review Petitioner's second or successive motion to vacate
sentence. Id. Petitioner's motion must therefore
be dismissed without prejudice for lack of jurisdiction.
conclusion, Petitioner's current motion to vacate
sentence is dismissed for lack of jurisdiction as it is a
second or successive § 2255 motion brought without ...