United States District Court, D. New Jersey
B. SIMANDLE U.S. DISTRICT JUDGE
matter comes before the Court by way of a motion to correct,
vacate, or set aside his federal sentence pursuant to 28
U.S.C. § 2255 filed on April 22, 2019 by Petitioner
Jevon Lewis (hereinafter, “Petitioner”), who is
proceeding pro se. (See Petition [Docket
Item 1].) The Court concludes that the instant motion is an
unauthorized second or successive petition under Section
2255. The Court will therefore transfer the present petition
to the Court of Appeals for the Third Circuit for
consideration under 28 U.S.C. § 2255(h).
Factual and Procedural Background.
was convicted on March 7, 2008 of (1) conspiracy to
distribute and to possess with intent to distribute cocaine
and cocaine base, in violation of 21 U.S.C. § 846 and
§ 841(b)(1)(A), (2) murder in furtherance of a
drug-trafficking conspiracy, in violation of 21 U.S.C. §
848(e)(1)(A), and (3) and murder in the course of a firearms
offense, in violation of 18 U.S.C. § 924. (See
Verdict Sheet [Docket Item 281] in Criminal No. 06-0076
(JEI).) On May 14, 2009, the Honorable Joseph E. Irenas,
U.S.D.J., sentenced Petitioner to two concurrent terms of
life imprisonment plus 120 months. (See Judgment
[Docket Item 317], in Crim. No. 06-0076 (JEI).) Petitioner
appealed and the Court of Appeals for the Third Circuit
affirmed the conviction and sentence. United States v.
Lewis, 447 Fed.Appx. 310, 313 (3d Cir. 2011).
March 11, 2013, Petitioner filed his first Section 2255
petition. (See Petition [Docket Item 1] in Civil No.
13-1453 (JEI).) On June 14, 2013, Judge Irenas issued a
Miller notice, to which Petitioner never responded.
(See Petition [Docket Item 1] in Civil No. 13-1453
(JEI).) Respondent United States of America (hereinafter,
“Respondent”), filed an answer on April 11, 2014
(see Answer [Docket Item 7] in Civil No. 13-1453
(JEI)), and Petitioner filed a reply on May 16, 2014.
(See Reply [Docket Item 10] in Civil No. 13-1453
(JEI).) The petition alleged two grounds for relief: (1)
Petitioner was actually innocent of the crimes; and (2)
Petitioner's sentence violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). (See Petition
[Docket Item 1] in Civil No. 13-1453 (JEI).) On June 9, 2015,
Judge Irenas denied the petition on the merits. See Lewis
v. United States, Civil No. 13-1453, 2015 WL 3651721
(D.N.J. June 11, 2015). Petitioner did not file an appeal.
November 18, 2016, Petitioner filed a second petition under
Section 2255, seeking to raise new challenges to his 2009
conviction. See Lewis v. United States, Civil No.
16-8997, 2016 WL 7440466 (D.N.J. Dec. 27, 2016). On December
27, 2016, the Honorable Noel L. Hillman, U.S.D.J., dismissed
Petitioner's second petition under Section 2255 for lack
of jurisdiction, as Petitioner had not received authorization
from the Court of Appeals for the Third Circuit to file a
second or successive petition under Section
2255. See id.
April 22, 2019, Petitioner filed the present petition under
Section 2255, without indicating that he had received
authorization to file such from the Court of Appeals for the
Third Circuit. (See Petition [Docket Item 1].)
Standard of Review.
2255 provides in relevant part that
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a). As Petitioner is proceeding pro
se, his petition is held to less stringent standards
than those pleadings drafted by lawyers. See Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is
the policy of the courts to give a liberal construction to
pro se habeas petitions.”) (internal quotation marks
and citation omitted); United States v. Otero, 502
F.3d 331, 334 (3d Cir. 2007) (“[W]e construe pro se
pleadings liberally.”) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). Nevertheless,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving
party.” 28 U.S.C. § 2255 Rule 4(b). Before a
second or successive § 2255 motion may be filed in the
district court, the applicant must move in the appropriate
court of appeals for an order authorizing the district court
to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A),
Congress has designated Section 2255 as the presumptive and
primary statutory vehicle for any habeas claim challenging a
conviction or sentence. See Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002), cert.
denied, 537 U.S. 1038 (2002); United States v.
Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999); In re
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997).
Through the Anti-Terrorism and Effective Death Penalty Act of
1996, Congress also imposed a stringent gatekeeping provision
which limited a prisoner's ability to file
“second” or “successive” § 2255
habeas petitions. See 28 U.S.C. §§
2244(a), 2255. That is, before a successive § 2255
petition can be heard by the sentencing court, the petition
must be certified by the Court of Appeals as containing:
(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 ...