The opinion of the court was delivered by: Chief Judge Kane
Currently pending before the Court is Petitioner Brian Barner's motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. (Doc. No. 572.) For the reasons stated more fully herein, the Court deems the motion a second or successive 28 U.S.C. § 2255 motion, and will accordingly deny the motion for want of federal subject matter jurisdiction.
Petitioner pleaded guilty to charges of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine and of possession with the intent to distribute more than 300 grams of cocaine on February 27, 1998. (Doc. No. 122.) On December 16, 1998, the Honorable Malcolm Muir sentenced Petitioner to serve a term of imprisonment to last 420 months on Count 1 and 240 months on Count 2 with the sentences to run concurrently. (Doc. No. 198.) Petitioner appealed the judgment, and the United States Court of Appeals for the Third Circuit affirmed the judgment on August 9, 1999. (Doc. No. 212.) Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on October 12, 2000. (Doc. No. 225.) Judge Muir ultimately denied the motion to vacate (Doc. No. 514), and the Third Circuit denied a certificate of appealability (Doc. No. 537). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on October 20, 2004. (Doc. No. 539.) Petitioner sought leave to file a second or successive motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which was denied on February 16, 2006. (Doc. No. 541.) Following an amendment of the sentencing guidelines related to certain crack-cocaine offenses, Petitioner filed for relief pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 543.) Judge Muir granted the motion and reduced Petitioner's term of imprisonment from 420 months to 378 months. (Doc. No. 563.) Petitioner's sentence was affirmed on direct appeal on October 29, 2009. (Doc. No. 571.) His petition for writ of certiorari was denied on June 21, 2010. Barner v. United States, 130 S. Ct. 3465 (2010). Petitioner filed the instant motion to vacate his sentence on June 20, 2011. (Doc. No. 572.)
The United States moves to dismiss Petitioner's motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255 on two separate grounds. First, the United States contends that the motion is filed outside 28 U.S.C. § 2255's one-year statute of limitations. Second, the United States contends this Court lacks jurisdiction because the motion is a second or successive petition, and Petitioner has not been granted leave to file such a motion by the Third Circuit Court of Appeals as required by 28 U.S.C. § 2255(h). The Court will consider the arguments in reverse order.
Petitioner styles his motion to vacate his sentence as challenging Judge Muir's disposition of Petitioner's motion filed pursuant to 18 U.S.C. § 3582(c)(2). However, a review of Petitioner's motion and brief in support makes clear that he is not challenging the modification of his original sentence. Rather, he is attempting to use the 18 U.S.C. § 3582(c)(2) proceedings to resuscitate procedurally defunct challenges to his original sentence and conviction. Specifically, Petitioner raises claims of police misconduct relating to his arrest, prosecutorial misconduct in the investigation of the case, and ineffective assistance of counsel in failing to challenge federal jurisdiction, advising Petitioner to plead guilty, and failing to appeal the conviction.*fn1
Accordingly, the Court must construe the motion as a second or successive motion filed pursuant to 28 U.S.C. § 2255(h). Under the Antiterrorism and Effective Death Penalty Act of 1996, a second or successive habeas corpus application filed by a federal prisoner like Petitioner:
[M]ust 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.
28 U.S.C. § 2255(h). Petitioner has failed to obtain the certification required from the Third Circuit to pursue a second or successive motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Therefore, the Court lacks ...