Opinion
Case No. 16-C-618 Criminal Case No. 05-Cr-11
05-27-2016
UNITED STATES OF AMERICA, Plaintiff, v. LAWRENCE T. TURNER, Defendant-Movant.
DECISION AND ORDER
Pro se Movant Lawrence T. Turner filed a letter in his criminal case, which the Clerk of Court opened as a civil action for relief pursuant to 28 U.S.C. § 2255. Turner states that § 4B1.1(a) of the United States Sentencing Guidelines was used to enhance his sentence based on his prior second-degree recklessly endangering safety felony conviction. Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), he posits that USSG § 4B1.1's residual clause may have been applied and, if so, he may be entitled to a reduction of his sentence. He also requested appointment of counsel, which the Federal Defender's Office declined unless the Court specifically orders it to represent Turner. (May 26, 2016, Docket Annotation; Case No. 05-Cr-11, ECF No. 244.)
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), which establishes a "'gatekeeping' mechanism for the consideration of 'second or successive federal habeas corpus applications,'" a prisoner must ask the appropriate court of appeals to direct the district court to consider such an application. 28 U.S.C. § 2244(b). Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (citation omitted). Without that authorization, the district court lacks jurisdiction over the petition. Kramer v. United States, 797 F.3d 493, 498 (7th Cir. 2015).
In this case, the instant motion is not Turner's first § 2255 motion. After filing a direct appeal, Turner filed a § 2255 motion which, after briefing, was denied on its merits by this Court. See Turner v. United States, No. 08-Cr-795, Decision and Order and Judgment (E.D. Wis.) (ECF Nos. 15, 16.) Consequently, this § 2255 motion is a successive motion for purposes of the AEDPA, and the Court lacks jurisdiction. See Kramer, 797 F.3d at 498. In order to proceed further with the Guideline-Johnson issue, Turner must first obtain permission from the Seventh Circuit Court of Appeals to file a successive § 2255 motion. This Court also declines to issue a certificate of appealability.
The requirements for a filing a request to file a successive petition for collateral review are stated in Seventh Circuit Rule 22.2. --------
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Turner's successive § 2255 motion (ECF No. 1) is DISMISSED for lack of jurisdiction; and
The Clerk of Clerk is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of May, 2016.
BY THE COURT:
/s/ _________
HON. RUDOLPH T. RANDA
U.S. District Judge