IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES PATRICK PREYEAR )

)

Petitioner, )

) Criminal Action No: 05-CR-00267-KD-B

v. )

) 

UNITED STATES OF AMERICA, )

)

Respondent. )

ORDER

This matter is before the Court on Petitioner James Patrick Preyear’s Motion to Vacate, Set 

Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. (Doc. 658). For the reasons discussed below, 

the motion is DISMISSED for lack of jurisdiction. 

“A second or successive motion [to vacate] must be certified as provided in section 2244 by a 

panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h). A petitioner must seek and obtain this 

certification “[b]efore a second or successive application . . . is filed in the district court.” 28 U.S.C. § 

2244(b)(3)(A). “Failure to petition [the court of appeals] for permission to file a successive § 2255 

motion leaves the district court without jurisdiction to rule on the successive § 2255 motion and he 

motion should be dismissed.” Lazo v. United States, 314 F.3d 571, 574 (11th Cir. 2002), vacated on 

other grounds sub nom. Gonzalez v. Sec’y for the Dep’t of Corr., 326 F.3d 1175 (11th Cir. 2003), 

superseding opinion, 366 F. 3d 1253 (11th Cir. 2004)(en banc); see also United States v. Holt, 417 F.3d 

1172, 1175 (11th Cir. 2007)(per curiam); Allen v. United States, 2012 U.S. Dist. LEXIS 73734 (S.D. 

Ala. April 6, 2012).

Following a trial, Preyear was convicted of conspiracy to possess with intent to distribute a 

controlled substance, in violation of 21 U.S.C. § 846, and was sentenced to 281 months imprisonment. 

(Doc. 330). Preyear’s conviction and sentence were affirmed on appeal. (Doc. 395). Preyear then filed 

his initial petition to vacate his sentence pursuant to 28 U.S.C. § 2255. (Doc. 569). Upon consideration 

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of his petition, the Court determined that the petition was untimely, and as a result, dismissed the 

petition and entered judgment against Preyear. (Docs. 590, 591). This Court denied Preyear’s request for 

a certificate of appealability. The Eleventh Circuit also denied the request. (Docs. 591, 598).1

On July 15, 2013, Preyear filed a second habeas petition. (Doc. 630). Upon consideration, the 

Court determined that Preyear’s petition was an unauthorized successive petition and dismissed it 

because Preyear failed to first seek and obtain permission from the Eleventh Circuit to file a successive 

petition. (Docs. 632, 634, 635).

On June 16, 2014, Preyear filed a third habeas petition, which was denied as Preyear again failed 

to obtain the Court of Appeals’ authorization for a second or successive motion pursuant to § 2255. 

(Docs. 637-639). On June 18, 2016, Preyear filed the instant motion pursuant to § 2255.2 He has not 

obtained authorization from the Eleventh Circuit to do so. Thus, this Court lacks jurisdiction to consider 

his motion. Accordingly, Preyear’s motion (Doc. 658) is DISMISSED for lack of jurisdiction.

3

DONE and ORDERED this 11th day of August 2016.

s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

 1 Preyear also filed a motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582. His request was denied on July 17, 

2013. (Docs. 623, 626, 628).

2 Under the mailbox rule, absent contrary evidence, a prisoner’s motion is deemed filed on the date it is delivered to prison 

officials for mailing. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). 3 As grounds for his motion, Petitioner claims that his prior conviction for second degree assault is no longer a crime of 

violence for purpose of enhancement under the Sentencing Guidelines and cites Johnson v. United States, 135 S. Ct. 2251 

(2015) in support. In Johnson, the Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), is 

unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it 

takes to qualify as a violent felony. Id. at 2251, 2557-58, 2563. Preyear was convicted of violating 21 U.S.C.§ 846. The 

ACCA is codified at 18 U.S.C. § 924(e). “The ACCA provides a mandatory statutory minimum of fifteen years for any 

individual who violates 18 U.S.C. § 922(g) and has three predicate convictions ‘for a violent felony or a serious drug offense, 

or both.’” Cortes-Morales v. Hastings, - - - F. 3d - - -, 2016 WL 3512410, at *1 (11th Cir. 2016). Thus, by definition, the 

ACCA only applies to individuals convicted of violating 18 U.S.C. § 922(g). Preyear was not sentenced pursuant to the 

ACCA, thus its residual clause is not implicated here. Nor was he sentenced pursuant to 18 U.S.C. § 924(c) or the Career 

Offender Guideline found at U.S.S.G. 4B1.1, which both contain language similar to the ACCA’s residual clause. Thus, the 

Court does not find it would be in the interests of justice to transfer this motion to the Eleventh Circuit Court of Appeals for 

its determination as to whether a second or successive motion pursuant to § 2255 should be authorized. See e.g. 28 U.S.C. § 

1631 (providing that when a civil action is filed in the wrong court, and that court finds that it lacks jurisdiction, the action 

may be transferred to the correct court, in the interests of justice). 

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