IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION 

ANTHONY BARRETT, 

CASE NO. 2:15-CV-02876

Petitioner, CRIM. NO. 2:11-CR-00173

JUDGE ALGENON L. MARBLEY

v. MAGISTRATE JUDGE KEMP

UNITED STATES OF AMERICA, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a federal petitioner, brings the instant motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the

Magistrate Judge RECOMMENDS that the motion, Doc. #136, be TRANSFERRED to

the United States Court of Appeals for the Sixth Circuit for authorization for filing as a

successive petition. 

Petitioner’s Motion to Appoint Counsel, Doc. #134, is DENIED.

This case involves Petitioner’s underlying convictions on armed bank robbery

and possession of a firearm in and affecting commerce by a person convicted of at least

three prior violent felony offenses made pursuant to the terms of his negotiated Plea

Agreement. Doc. #122. Petitioner asserts that the Court unconstitutionally imposed

sentence in view of the recent decision of the United States Supreme Court in Johnson v.

United States, -- U.S. --, 135 S.Ct. 2551 (2015)(holding that the residual clause of the

Armed Career Criminal Act is unconstitutionally vague). 

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However, this is not Petitioner’s first § 2255 motion. On January 14, 2014, this

Court denied Petitioner’s prior § 2255 petition. Doc. # 123. On April 1, 2015, the Sixth

Circuit Court of Appeals denied Petitioner’s request for a certificate of appealability. 

Doc. #133. 

28 U.S.C. § 2255(h) states that “[a] second or successive motion must be certified

as provided in section 2244 by a panel of the appropriate court of appeals to contain-

(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 have found the movant guilty

of the offense; or

(2) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable.

Under 28 U.S.C. § 2244(b)(3)(A), before a second or successive petition for a writ of

habeas corpus can be filed in the district court, the applicant must move in the

appropriate circuit court of appeals for an order authorizing the district court to

consider the application. Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), a district court does not have jurisdiction to entertain a successive

postconviction motion or petition for writ of habeas corpus in the absence of an order

from the court of appeals authorizing the filing of such successive motion or petition. 

Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th

Cir. 1997). Unless the court of appeals has given approval for the filing of a second or

successive petition, a district court in the Sixth Circuit must transfer the petition to the

Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curia).

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Under § 2244(b)(3) (A), only a circuit court of appeals has the power to authorize the

filing of a successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d

990 (7th Cir.1996). That being the case, this Court is without jurisdiction to entertain a

second or successive § 2255 petition unless authorized by the Court of Appeals for the

Sixth Circuit.

Other courts to consider whether a second habeas corpus petition raising a claim

under Johnson constitutes a successive § 2255 petition have determined that it does. In

Anderson v. Snyder-Norris, 2015 WL 5174234 (E.D. Ky. Sept. 2, 2015), the United States

District Court for the Eastern District of Kentucky held that a petition under 28 U.S.C. §

2241 challenging an ACCA enhanced sentence under Johnson is properly considered

under 28 U.S.C. § 2255 and requires authorization for filing from the Court of Appeals

where the petitioner had previously sought § 2255 relief. Id. at *4-5 (citing Cockrell v.

Kreuger, No. 1:15-CV-01279, 2015 WL 4648029 (C.D. Ill., Aug. 5, 2015); Wood v. Maiorana,

No. 3:CV-15-1409, 2015 WL 4663267, at *2-6 (M.D.Pa. Aug. 6, 2015)). See also Lane v.

Butler, -- F.Supp.3d --, 2015 WL 5612246, at *3 (E.D. Ky. Sept. 21, 2015)(claim under

Johnson properly considered under 28 U.S.C. § 2255 in lieu of § 2241, and requires

authorization for filing where successive); Jennings v. Lariva, 2015 WL 5156047, at *2-3

(S.D. Ind. Sept. 2, 2015)(28 U.S.C. § 2241 not proper remedy for claim under Johnson, and

the petitioner must seek authorization for filing a successive § 2255 petition)(citations

omitted). This Court therefore reaches this same conclusion here. 

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The Sixth Circuit described the proper procedure for addressing a second or

successive petition filed in the district court without § 2244(b)(3)(A) authorization in In

re Sims.

[W]hen a prisoner has sought § 2244(b)(3)(A) permission

from the district court, or when a second or successive

petition for habeas corpus relief or § 2255 motion is filed in

the district court without § 2244(b)(3) authorization from this

court, the district court shall transfer the document to this

court pursuant to 28 U.S.C § 1631.

Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curia).

Therefore, the Magistrate Judge RECOMMENDS that this action be

TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for

authorization for filing as successive.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days of the date of this report, file and serve on all parties written

objections to those specific proposed findings or recommendations to which objection is

made, together with supporting authority for the objection(s). A judge of this Court

shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

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The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a waiver of the right to appeal

the decision of the District Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

The parties are further advised that, if they intend to file an appeal of any

adverse decision, they may submit arguments in any objections filed, regarding

whether a certificate of appealability should issue.

/s/ Terence P. Kemp 

 United States Magistrate Judge

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