United States District Court, M.D. Pennsylvania
Malachy E. Mannion, United States District Judge.
March 28, 2016, the court issued a Memorandum and Order,
(Doc. 58, Doc. 59), and denied defendant
James King’s February 5, 2016 motion to vacate, set
aside or correct sentence, (Doc. 52), filed pursuant to 28
U.S.C. §2255. King’s §2255 motion was based
on Johnson v. United States, __U.S. __, 135 S.Ct.
2551 (2015). The court found that King was determined to be a
career offender at his sentencing based in part on his three
prior convictions for controlled substance offenses and that
Johnson did not apply to the definition of
controlled substance offense contained in the sentencing
guidelines. Thus, the court denied King’s first
§2255 motion on the merits. In its Order, the court
specifically held that there was no probable cause to issue a
certificate of appealability (“COA”).
October 17, 2016, the court issued a Memorandum and Order,
(Docs. 66 & 67), and granted King’s motion to
reopen the time to file an appeal under Fed.R.App.P. 4(a)(6)
and motion for an extension of time to file a notice of
appeal with respect to the court’s March 28, 2016 Order
denying his §2255 motion. In its Memorandum, the court
pointed out that even though it was reopening the time for
King to file an appeal under Fed.R.App.P. 4(a)(6), and
granting his motion for an extension of time, it was doing so
only to allow King to seek a COA from the Third Circuit. The
court also noted that King could not yet properly file a
notice of appeal since this court found in its March 28, 2016
Order that there was no probable cause to issue a COA. The
court cited to U.S. v. Rinaldi, 447 F.3d 192, 194
(3d Cir. 2006) (“Under 28 U.S.C. §2253(c)(1)(B),
‘[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from the final order in a proceeding
under section 2255.’”).
notice of appeal, (Doc. 64), construed as an application for
a COA, was then transmitted to the Third Circuit.
December 21, 2016, the Third Circuit issued an Order denying
King’s application for a COA. (Doc. 68). In its Order,
the Court stated:
Reasonable jurists would not debate the District
Court’s denial of Appellant [Kings’s] motion
under 28 U.S.C. §2255. See 28 U.S.C.
§2253(c); Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). In that motion, Appellant [King] relied on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the “residual
clause” of the Armed Career Criminal Act, which defines
a “violent felony, ” was unconstitutionally
vague. 135 S.Ct. at 2557. But, as the District Court
explained, Johnson is inapplicable to Appellant
because his sentence was not enhanced based solely on prior
violent felonies. Rather, his sentence was enhanced under the
Sentencing Guidelines based additionally on “three
controlled substance offenses[, ]” which were not
affected by Johnson. United States v. King,
588 Fed.Appx. 139, 140 (3d Cir. 2014) (not precedential).
the fact that this court declined to issue a COA and the
Third Circuit denied King’s application for a COA to
appeal the denial of his first §2255 motion, on August
19, 2019, King filed a second §2255 motion. (Doc. 71).
August 26, 2019, the government filed its opposition brief to
King’s instant motion. (Doc. 73). King did not file a
reply brief and the time to do so has
filed his second §2255 motion and he bases it on newly
discovered evidence, i.e., he claims that the government
breached his plea agreement by supporting the court’s
determination that he was a career offender as found by the
PSR. King claims that if he was sentenced without the career
offender enhancement, his sentence would have been
120-months, i.e., the term the parties agreed to recommend in
his plea agreement. As such, in his second or successive
§2255 motion, King contends that there was a fundamental
miscarriage of justice when the government breached his plea
government contends that King’s instant motion is a
second or successive §2255 motion and that it should be
dismissed by the court for lack of jurisdiction since King
has not obtained the required COA from the Third Circuit.
doubt that “[King’s] [August 19, 2019] §2255
motion constitutes a second or successive §2255 motion
because his previous §2255 motion was denied on the
merits and his present §2255 motion attacks the same
criminal judgment.” U.S. v. Hawkins, 614
F.App'x 580, 581 (3d Cir. 2015) (citation omitted).
King’s instant §2255 motion is also successive
because he clearly could have raised his argument that the
government breached his plea agreement in his first
§2255 motion. “The ...