The opinion of the court was delivered by: (Chief Judge Kane)
Currently pending before the Court is Petitioner's motion to reconsider the late Judge James McClure's December 21, 2004 order denying petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 292.) For the reasons stated more fully herein, the Court will dismiss the motion for want of subject matter jurisdiction.
Petitioner was found guilty of three narcotics offenses and on July 8, 2002, and was sentenced to a term of imprisonment to last 240 months on each count with the sentences to run concurrently. (Doc. No. 198.) On June 19, 2003, the United States Court of Appeals for the Third Circuit affirmed Petitioner's conviction. (Doc. No. 233.) Since that time, Petitioner has persistently, albeit unsuccessfully, sought relief pursuant to 28 U.S.C. § 2255. Judge McClure denied Petitioner's first motion to vacate his sentence on December 21, 2004. (Doc. No. 258.) The Court of Appeals denied a certificate of appealability on June 21, 2005, United States v. Griggs, No. 05-1892 (3d Cir. June 21, 2005), and denied a motion for rehearing en banc on August 1, 2005, United States v. Griggs, No. 05-1892 (3d Cir. Aug. 1, 2005). Petitioner filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure challenging the December 21, 2004 order, which Judge McClure denied as a second or successive motion under 28 U.S.C. § 2255. (Doc. No. 267.) The Third Circuit denied a certificate of appealability on June 29, 2006. (Doc. No. 270.) On June 16, 2006, Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Griggs v. United States, No. 4:06-cv-1218 (M.D. Pa. June 19, 2006). Judge McClure dismissed that petition on June 20, 2006. Griggs v. United States, No. 4:06-cv-1218 (M.D. Pa. June 20, 2006). On September 20, 2007, Petitioner filed yet another Rule 60(b) motion challenging the denial of Judge McClure's December 21, 2004 order. (Doc. No. 273.) On October 5, 2007, Judge McClure denied the motion as a second or successive motion under 28 U.S.C. § 2255. (Doc. No. 274.)
Petitioner's motion, is styled as a motion to reconsider Judge McClure's December 21, 2004 order denying his motion to vacate his sentence. A fair reading of the motion, however, reveals that it is in fact an attack on Petitioner's underlying conviction and sentence. The United States Court of Appeals for the Third Circuit has advised that "when the Rule 60(b) motion seeks to collaterally attack the petitioners' underlying conviction, the motion should be treated as a successive habeas petition." Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Pursuant to 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). Therefore, because Petitioner's motion is in fact a collateral attack on Petitioner's conviction and because Petitioner has failed to submit the required certification from the Third Circuit, the Court lacks jurisdiction to consider the motion. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).*fn1
ACCORDINGLY, on this 7th day of February 2012, IT IS HEREBY ORDERED THAT Petitioner's motion (Doc. No. 292) is DENIED WITHOUT PREJUDICE to Petitioner's right to seek permission from the United States Court of Appeals for the Third Circuit to file a second or successive motion pursuant to 28 U.S.C. § 2255. No certificate of appealability shall issue.*fn2
Yvette Kane, Chief Judge United States District Court Middle ...