United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter before the Court is Defendant John R. Taylor's
pro se “Motion Pursuant to 28 U.S.C. §
2255(f)(3)” [Doc. No. 408]. Defendant seeks relief from
concurrent 360-month prison sentences imposed in 1998, based
on the same ground raised in a prior § 2255 motion under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Defendant claims the ruling in Johnson, “which
held that the residual clause of the Armed Career Criminal
Act (ACCA), 18 U.S.C. §924(e)(2)(B)(ii) is void for
vagueness, also applies to the residual clause of §4B1.2
of the U.S.S.G. mandatory sentencing enhancement provision
before U.S. v. Booker, 543 U.S. 220 (2005).”
See Def.'s Mot. at 1.
claim was previously raised in a § 2255 motion that the
Court dismissed because - although the court of appeals had
authorized Defendant to file a second or successive motion to
assert a Johnson claim - he failed to satisfy a
precondition to relief, that is, he failed to show his claim
was based “on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court.” See 28 U.S.C. § 2255(h)(2).
See 8/9/17 Order [Doc. No. 401] at 8. Defendant now
“asks this court to re-examine its Order denying the
previous § 2255 motion (Doc. #401)” in light of
the Supreme Court's recent decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). See Def.'s
Mot. at 1.
consideration of Defendant's Motion, the Court finds that
it constitutes a second or successive § 2255 motion for
which prior authorization from the court of appeals is
required. See 28 U.S.C. § 2255(h); see
also 28 U.S.C. § 2244(b)(3). Although Defendant
requests reconsideration of the Court's 2017 Order, he
does not rely on any claim of error that would permit relief
under Fed.R.Civ.P. 60(b). See Gonzalez v. Crosby,
545 U.S. 524, 532-33 (2005); see also Spitznas v.
Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006);
United States v. Nelson, 465 F.3d 1145, 1147 (10th
Cir. 2006) (applying Gonzalez in § 2255
proceeding). Without prior certification from the court
of appeals of a second or successive § 2255 motion, this
Court lacks subject matter jurisdiction. See United
States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006);
United States v. Torres, 282 F.3d 1241, 1246 (10th
situation, the Court must decide whether to dismiss
Defendant's Motion or to transfer it to the court of
appeals pursuant to 28 U.S.C. § 1631. See In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Upon
consideration of the factors identified in Cline,
the Court finds that a transfer is not warranted under the
circumstances, “[w]here there is no risk that a
meritorious successive claim will be lost absent a §
1631 transfer.” Id. Therefore, the Court finds
that the proper disposition of this matter is a dismissal for
lack of jurisdiction.
THEREFORE ORDERED that Defendant's Motion Pursuant to 28
U.S.C. § 2255(f)(3) [Doc. No. 408] is DISMISSED. A
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.
 Defendant appealed the prior
dismissal, and the Tenth Circuit denied a certificate of
appealability and dismissed the appeal on an alternate
ground. See United States v. Taylor, No. 17-6190,
2018 WL 992290 (10th Cir. Feb. 20, 2018). However, the Tenth
Circuit has reached the same conclusion as this Court, that
is, the type of claim asserted by Defendant does not rely on
a retroactively-applicable Supreme Court decision. See
United States v. Greer, 881 F.3d 1241, 1248 (10th Cir.
2018). Defendant argues in support of the instant Motion that
“Dimaya abrogated Greer.” See
Def.'s Mot. at 7.
 “Under Gonzalez, a
[Rule] 60(b) motion is a second or successive petition if it
in substance or effect asserts or reasserts a federal basis
for relief from the petitioner's underlying