MCGHEE
v.
UNITED STATES
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The district court dismissed the petitioner's second or successive motion to vacate sentence for lack of jurisdiction because he failed to obtain authorization from the Eleventh Circuit Court of Appeals.
Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255, which the court construed from a habeas corpus petition. This was the second …
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This case is before the Court on Petitioner Keith Lavert McGhee’s “Petition for Writ of Habeas Corpus,” which the Court construes as a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence.1 (Civ. Doc. 1, § 2255 Motion and Exhibits; Civ. Doc. 2, Memorandum; Civ. Doc. 3, Affidavit).2 In 2019, McGhee pleaded guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), for which he was sentenced to a term of 60 months in prison. (Crim. Doc. 71, Judgment; Crim. Doc. 62, Plea Agreement). McGhee admitted to unlawfully possessing a Norinco 7.62 x 39 mm rifle and a Rossi .38 caliber revolver, both of which were recovered from a hotel room following a dispute between McGhee and hotel staff. Plea Agreement at 18–19.
In the First § 2255 Motion and Addendum, McGhee claimed that (1) the Court lacked subject matter jurisdiction over the charged offense because the government did not prove an injury or financial loss to a corporation or other victim, such that there was no effect on interstate commerce; (2) he lacked knowledge of the jurisdictional element of § 922(g); and (3) he committed a mistake of law and lacked the requisite mens rea to be guilty of the charge. The Court denied the First § 2255 Motion and dismissed it with prejudice on January 28, 2020, reasoning that the claims were procedurally defaulted or lacked merit. (Id., Doc. 10). McGhee did not appeal that Order. More than nine months later, McGhee filed the instant § 2255 Motion.
However, because McGhee previously filed a § 2255 motion challenging the same judgment and it was denied, he was required to obtain permission from the Eleventh Circuit Court of Appeals before filing it. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).
McGhee did not obtain authorization to file the current motion. Under 28 U.S.C. § 2255, “[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals....” 28 U.S.C. § 2255(h). “Without authorization, the district court lacks jurisdiction to consider a second or successive petition.” United States v. Holt, 417 F. 3d 1172, 1175 (11th Cir. 2005) (citing Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003)).
Because the Eleventh Circuit has not authorized McGhee to file a second or successive motion to vacate, the Court lacks jurisdiction over the current § 2255 Motion.
Accordingly, it is hereby ORDERED: 1. Petitioner Keith Lavert McGhee’s “Petition for Writ of Habeas Corpus,” construed as a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Civ. Doc. 1), is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
2. The Clerk shall send McGhee the proper form to apply to the Eleventh Circuit Court of Appeals for leave to file a second or successive motion to vacate.
3. The Clerk shall close the file.
DONE AND ORDERED at Jacksonville, Florida this 23rd day of November, 2020. A) BRIAN J. DAV! United States District Judge lc 19
Copies:
Counsel of record Keith Lavert McGhee