United States District Court, W.D. Pennsylvania
Flowers Conti, Senior United States District Judge.
before the court is a pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255(f)(4) (ECF
No. 1255) filed by Eric Alford (“Alford” or
“defendant”). Also pending is the
government's motion to dismiss Alford's motion, as an
unauthorized successive § 2255 motion (ECF No. 1261).
and Procedural Background
pled guilty to a cocaine and crack cocaine conspiracy and
attempt. On August 19, 2011, he was sentenced to 240 months
in prison at each count, to run on a concurrent basis. He did
not file a direct appeal.
filed his first § 2255 motion (ECF No. 1131), in June
2017. Alford recognized that the motion, filed almost six
years after his sentence, would ordinarily be untimely but
contended that his motion was timely because it was filed
within one year of the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243
(2016). (ECF No. 1131 at 2). On November 21, 2017,
the court issued a memorandum opinion and order (ECF No.
1148) dismissing Alford's first § 2255 motion as
untimely and denied a certificate of appealability.
filed the pending, second § 2255 motion on September 3,
2019. In the motion, he contends that his trial counsel
committed a fundamental miscarriage of justice by failing to
challenge a 2008 wiretap application as improper on its face.
He contends that the motion is timely because it involves an
(unspecified) new fact. Importantly, Alford did not provide a
certification from the Third Circuit Court of Appeals which
authorized him to file a second § 2255 motion.
28 U.S.C. § 2255, a federal prisoner may move the
sentencing court to vacate, set aside, or correct the
prisoner's sentence. That right is subject to stringent
procedural and substantive requirements that an applicant
must satisfy in order to file a second or successive §
2255 motion with a district court. Mendoza v. United
States, No. CR 06-167, 2017 WL 1293575, at *2 (W.D. Pa.
Apr. 6, 2017). In particular, as applicable to this case, 28
U.S.C. § 2255(h) requires a petitioner to obtain
certification from the appropriate court of appeals
before filing a second or successive § 2255
motion. Id. (emphasis in original). The court of
appeals, not the district court, must certify that the second
§ 2255 motion meets the statutory requirements. The
statute provides, in relevant part:
(h) A second or successive motion must 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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
courts lack subject-matter jurisdiction to consider an
unauthorized second or successive § 2255 motion.
Mendoza, 2017 WL 1293575, at *2 (citing In re
Olabode, 325 F.3d 166, 169 (3d Cir. 2003); Lugo v.
Zickefoose, 427 Fed.Appx. 89, 92 (3d Cir. 2011)
(“We also agree with the District Court's ultimate
conclusion that it lacked subject matter jurisdiction over
the petition, treated as a second or successive § 2255
motion.”). In sum, if Alford does not show that he
already obtained authorization from the Third Circuit Court
of Appeals to file a second or successive § 2255 motion,
this court is not empowered to decide the motion.
Mendoza, the court explained that once the court
determines that a petitioner's filing is an unauthorized
second or successive § 2255 motion, it may proceed by
either (1) dismissing the motion for lack of subject-matter
jurisdiction, or (2) transferring the motion to the court of
appeals pursuant to 28 U.S.C. § 1631 for consideration
as an application to file a second or successive petition.
Id. (citing Robinson v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002)). In deciding which option to
implement, the court should evaluate whether the petitioner
has alleged ...