Opinion
CASE NO. 1:06 CR 244
06-27-2014
Brian Williams, Petitioner, v. United States of America. . Respondent.
DOWD, J.
ORDER
Before the Court is a memorandum of law filed by petitioner Brian Williams in support of an "application" pursuant to 28 U.S.C. § 2255. ECF 35. The Court construes petitioner Brian Williams's memorandum of law in support of a § 2255 application either as a § 2255 petition, or a request to file a second successive § 2255 petition. For the reasons that follow, Williams's "application" is DENIED.
The petitioner pled guilty in 2006 to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 180 months of imprisonment. He did not appeal.
In 2007, Williams filed a motion to vacate his sentence pursuant to § 2255 alleging ineffective assistance of counsel, lack of jurisdiction, and double jeopardy, which the Court denied and denied a certificate of appealability. Williams v. United States, 2008 WL 2323532 at *1 (N.D. Ohio May 30, 2008). Williams then unsuccessfully filed a motion with the Sixth Circuit Court of Appeals for an order authorizing the district court to consider a second successive petition. In re Williams, No. 10-4308 (6 Cir. Sept. 28, 2011).
On March 16, 2013, Williams file another motion before the Sixth Circuit for an order authorizing the district court to consider a second successive petition pursuant to § 2255. On September 17, 2013, the Sixth Circuit denied Williams's motion. ECF 34.
The basis of Williams's "application" presently pending before the Court is the Supreme Court's ruling in Descamps v. United States, - U.S. - , 133 S.Ct. 2276 (2013). In order for a second successive petition to proceed, the petitioner must present new evidence upon which no reasonable fact-finder could find the petitioner guilty, or "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) (emphasis added).
Without deciding whether the ruling in Descamps is a new rule of constitutional law or applicable to plaintiff's case, Descamps cannot serve as a basis for petitioner's second successive petition. First, the word "retroactive" does not appear in the Descamps decision. Further, "[t]o date, the Supreme Court has not made Descamps retroactive on collateral review. Groves v. U.S. - F.3d -, 2014 WL 2766171 (7 Cir. June 19, 2014); Hoskins v. Coakley, 2014 WL 245095 (N.D. Ohio January 22, 2014).
Petitioner has not presented the Court with a valid basis on which to advance a second successive petition pursuant to § 2255. Accordingly, his "application" (ECF 35) is DENIED.
IT IS SO ORDERED.
__________
David D. Dowd, Jr.
U.S. District Judge