United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
matter before the Court is Defendant Marcus Wayne
Elliott's pro se Motion to Vacate, Set Aside or
Correct Sentence Under 28 U.S.C. § 2255 [Doc. No. 95].
Although the Motion was filed as a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the United
States District Court for the Northern District of Texas, it
was recharacterized and transferred to this judicial district
by the presiding judge, United States District Judge John
McBryde. See Case No. CIV-17-264, Order of June 2,
2017 [Doc No. 8].
preliminary review pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings, the Court finds the Motion is a
second or successive § 2255 motion that has been filed
without prior authorization of the court of appeals, as
required by 28 U.S.C. § 2255(h) and § 2244(b)(3).
Further, the Court finds that it lacks jurisdiction to
consider the Motion and that the Motion should be dismissed
without prejudice to refiling.
August 4, 1999, Defendant pleaded guilty to the offense of
possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1), as charged in Count
6 of the Indictment filed May 5, 1999. On April 4, 2000,
Defendant was sentenced to a term of imprisonment of 360
months, which was the low end of the guideline range under
the applicable provisions of the United States Sentence
Guidelines. Defendant did not appeal. On June 30, 2016,
Defendant filed a § 2255 motion purporting to assert a
claim that his sentence was unconstitutional under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Upon preliminary review of that motion, the Court summarily
dismissed it “because Johnson did not affect
[Defendant's] sentence.” See Order of July
31, 2016 [Doc. No. 92] at 2. Again, Defendant did not
record reflects no authorization by the court of appeals for
a second or successive § 2255 filing. Without prior
authorization, this Court lacks subject matter jurisdiction
of a second or successive motion. See United States v.
Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); United
States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002).
In this situation, the Court must decide whether to dismiss
the matter or transfer it to the court of appeals for
consideration. The court of appeals has instructed:
“When a second or successive § 2254 or § 2255
claim is filed in the district court without the required
authorization from this court, the district court may
transfer the matter to this court if it determines it is in
the interest of justice to do so under [28 U.S.C.] §
1631, or it may dismiss the motion or petition for lack of
jurisdiction.” See In re Cline, 531 F.3d 1249,
1252 (10th Cir. 2008). Factors to be considered in deciding
whether a transfer is in the interest of justice
“include whether the claims would be time barred if
filed anew in the proper forum, whether the claims alleged
are likely to have merit, and whether the claims were filed
in good faith or if, on the other hand, it was clear at the
time of filing that the court lacked the requisite
jurisdiction.” See Id. at 1251. “Where
there is no risk that a meritorious successive claim will be
lost absent a § 1631 transfer, a district court does not
abuse its discretion if it concludes it is not in the
interest of justice to transfer the matter.”
Cline, 531 F.3d at 1252.
examination of the Motion, the Court finds that a transfer to
the court of appeals is not warranted. Defendant's Motion
provides an insufficient description of his claim to permit a
determination of possible merit. See supra note 1.
Further, Defendant provides no basis to believe that the
authorization standard of § 2255(h) might be met. Under
the circumstances, the Court finds that the proper
disposition of this matter is a dismissal for lack of
THEREFORE ORDERED that Defendant's Motion to Vacate, Set
Aside or Correct Sentence Under 28 U.S.C. § 2255 [Doc.
No. 95] is DISMISSED for lack of jurisdiction. A separate
judgment of dismissal shall be entered.
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2255 Proceedings, the Court must issue or
deny a certificate of appealability (“COA”) when
it enters a final order adverse to a movant. A COA may issue
only upon “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C.
§2253(c)(2). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with
the district court's resolution of his constitutional
claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed
further.” Miller El v. Cockrell, 537 U.S. 322,
327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484
(2000). Where relief is denied on procedural grounds without
reaching the merits of the prisoner's claims, “a
COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Upon consideration, the Court finds that this standard is not
met here. Therefore, a COA is DENIED, and the denial shall be
included in the judgment.
 In the prior motion, Defendant
complained of a two-level guideline enhancement assessed
under § 2D1.1(b)(1) for possession of a firearm in
connection with the drug trafficking offense. Although
unclear, he may be asserting the same claim in the present
Motion. If so, the Motion would be subject to dismissal under
28 U.S.C. § 2244(b)(1). However, Defendant does not
sufficiently articulate his claim to permit that
determination to be made; he ...