Opinion
No. 5:97-CR-74 (CAR)
09-03-2013
UNITED STATES OF AMERICA, v. DANNY GREEN, Defendant.
ORDER ON THE RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Before the Court is the Recommendation of the United States Magistrate Judge [Doc. 486] to dismiss Petitioner Danny Green's Motion to Vacate under 28 U.S.C. § 2255 [Doc. 484]. Therein, the Magistrate Judge determined that because Petitioner previously filed multiple unsuccessful § 2255 motions and because he has not been granted prior authorization to do so by the Eleventh Circuit, Petitioner's § 2255 petition is successive. Petitioner, proceeding pro se, filed an Objection to the Recommendation [Doc. 490]. Pursuant to 28 U.S.C. § 636(b)(1), the Court has thoroughly considered Petitioner's Objection, has made a de novo determination of the portions of the Recommendation to which Petitioner objects, and finds the Objection to be without merit.
In his Objection, Petitioner does not dispute that his petition is successive, nor does he argue that he has moved for or obtained, from the Eleventh Circuit, an order authorizing this Court to consider his second habeas petition. Instead, Petitioner argues that the Magistrate Judge erred in not considering his argument for the retroactive application of Alleyne v. United States. The Supreme Court in Alleyne overruled Harris v. United States, and found that the Sixth Amendment rights recognized in Apprendi v. New Jersey, also apply to facts triggering a mandatory minimum sentence. Petitioner contends the instant motion is not a successive § 2255 motion because Alleyne establishes a new rule made retroactive to collateral review cases.
133 S. Ct. 2157 (U.S. 2013).
536 U.S. 545 (2002).
530 U.S. 466 (2000).
However, § 2255(h)(2) only applies if a new rule has been "made retroactive to cases on collateral review by the Supreme Court." Resolving Alleyne on direct, rather than collateral, review, the Supreme Court never said that its new rule applies retroactively on collateral attack. As the Seventh Circuit recently held,
Alleyne is an extension of Apprendi v. New Jersey, 530 U .S. 466 (2000). The Justices have decided that other rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348 (2004). This implies that the Court will not declare Alleyne to be retroactive. See also Curtis v. United States, 294 F.3d 841 (7th Cir. 2002) (Apprendi itself is not retroactive). But the decision is the Supreme Court's, not ours, to make. Unless the Justices themselves decide that Alleyne applies retroactively on collateral review, we cannot authorize a successive collateral attack based on § 2255(h)(2) or the equivalent rule for state prisoners, 28 U.S.C. § 2244(b)(2)(A).
Simpson v. United States, –– F.3d –––, 2013 WL 3455876, at * 1 (7th Cir. July 10, 2013).
In any event, as the Southern District of Georgia recently noted in an order addressing a similar argument, Petitioner "has knocked on the wrong court's door. 'Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.' [Petitioner] has not shown why he has knocked on this door instead."
Scott v. United States, Nos. CV413-186, CR405-331, 2013 WL 4077546, at * 1 (S.D. Ga. Aug. 12, 2013) (citing 28 U.S.C. § 2244(b)(2)(A)).
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Consequently, the Recommendation [Doc. 486] is ADOPTED and MADE THE ORDER OF THE COURT. Petitioner's Motion to Vacate [Doc. 484] is DISMISSED.
______________________
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH