United States District Court, N.D. Mississippi, Delta Division
SHARION AYCOCK, U.S. DISTRICT JUDGE.
matter comes before the court on the motion of James Allen
Morris to vacate, set aside, or correct his sentence under 28
U.S.C.A. §2255. The matter is ripe for resolution.
and Procedural Posture
was charged in a superseding indictment with possession of
more than five (5) grams of crack cocaine with intent to
distribute (Count I); possession of heroin (Count II);
possession of cocaine (Count III), and two (2) counts of
possession of a firearm by a convicted felon (Count IV and
V). ECF doc. 24. On December 4, 2002, Morris pleaded guilty
to Counts I and IV of the superseding indictment. Pursuant to
his plea, Morris was sentenced, as a career offender, to
serve a term of 230 months on Count I and 120 months on Count
IV, to be served concurrently. ECF doc. 64. Counts II, III,
and V of the superseding indictment and the original
indictment were dismissed. Id. The Fifth Circuit
affirmed Morris' conviction and sentence. ECF doc. 69.
April 16, 2004, Morris filed a motion to vacate his sentence
pursuant to 28 U.S.C.A. §2255. ECF doc. 74. Morris'
petition was denied; however, his “claim regarding the
amount of crack cocaine used to compute his sentence shall be
preserved for further briefing.” ECF doc. 83. Following
further briefing, Morris' petition was denied. ECF doc.
109. Morris then filed a motion for sentence reduction
pursuant to 18 U.S.C.A. §3582(c)(2), which was denied.
ECF doc. 167.
29, 2013, Morris filed a second pro se motion to
vacate his sentence pursuant to 28 U.S.C.A. §2255. ECF
doc. 178. Because this petition was successive, Morris was
informed the he was required to first seek permission from
the Fifth Circuit to proceed with his §2255 petition.
ECF doc. 182. Morris was denied permission to proceed with a
successive petition. ECF doc. 189.
February 2, 2016, Morris filed another pro se §2255
petition seeking relief pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). ECF doc. 221.The Fifth
Circuit denied Morris permission to proceed with a successive
§2255 petition raising his Johnson claim. ECF
doc. 224. On June 24, 2016, Morris, through counsel, filed a
successive §2255 petition raising his Johnson
argument “as a protective filing to ensure that he has
met the deadline in the event that the Fifth Circuit's
denial of his motion for authorization to file a successive
§ 2255 motion is later overturned.” ECF doc. 225,
pg. 4. For the reasons discussed herein, Morris's
petition is denied.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. §2255; see United States v.
Cates, 952 F.2d 149, 151 (5thCir.1992). The
scope of relief under §2255 is the same as that of a
petition for a writ of habeas corpus.
Cates, 952 F.2d at 151.
defendant seeking relief under 28 U.S.C. §2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No.
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant may not raise the issue in a later
collateral attack. Moore v. United States, 598 F.2d
439, 441 (5th Cir. 1979).
pursuant to Rule 9 of the Rules Governing Section 2255
Proceedings, a petitioner must first obtain the permission of
the Fifth Circuit before proceeding with a successive
§2255 petition. “A defendant is generally
permitted only one motion under § 2255 and may not file
successive motions without first obtaining this Court's
authorization. 28 U.S.C. § 2255(h); see United
States v. Key, 205 F.3d 773, 774 (5th
Cir.2000).” United States v. Hernandes, 708
F.3d 680, 681 (5th Cir. 2013). Without such
authorization, the district court lacks jurisdiction to
consider a successive petition. Id.
Court Lacks Jurisdiction to Consider Morris'
Morris' petition is successive, he must first obtain
authorization from the Fifth Circuit. As noted above,
Morris's request for permission to proceed with a
successive §2225 petition was denied by the Fifth
Circuit. ECF doc. 224. Without an order from the Fifth Cicuit
authorizing the successive petition, this ...