United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on defendant’s motion to vacate conviction pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Filing No. 243. On May 23, 2001, the government indicted the defendant for conspiracy to possess with the intent to distribute crack cocaine (Count I) and possession with intent to distribute crack cocaine (Counts II through IV). Filing No.1. Defendant contends the government withheld exculpatory evidence from him.
The record shows the defendant was sentenced in this case in 2002. Filing No. 87. He filed an appeal, which was denied. Filing No. 115. The Supreme Court denied certiorari. Filing No. 119. He thereafter filed a motion to reduce his sentence under amendments to the crack cocaine guidelines, which this Court denied. Filing No. 149, Motion, Filing No. 153, Order. He appealed that order and the Eighth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction. Filing No. 164 and Filing No. 167. He also filed for habeas corpus relief which this Court denied. Filing No. 120, Motion; Filing No. 129, Memorandum and Order; Filing No. 130, Judgment.
Also, he filed a “motion to dismiss” alleging the government has no jurisdiction over him. Filing No. 199. This Court denied that motion as frivolous and without merit. Filing No. 200. He then filed for reconsideration, and this Court also denied that motion for the same reasons. Filing No. 201, Motion; Filing No. 202, Order. The defendant also filed other motions, including a motion for writ of coram nobis, Filing No. 169; a motion to reduce sentence, Filing No. 172; and a motion to correct sentence, Filing No. 187, all of which this Court denied. See Filing No. 170, Filing No. 179, and Filing No. 189. He filed an appeal, Filing No. 205, and the Eighth Circuit summarily affirmed this Court. Filing Nos. 214 and 217. Defendant then filed a second motion for a writ of habeas corpus, Filing No. 221, which the Court denied. Filing No. 222. He then filed motions under Rule 60(a) and (b) and 59(e) of the Federal Rules of Civil Procedure, Filing No. 226, which again this Court denied. Filing No. 228. Defendant appealed that order, Filing No. 229, which the Eighth Circuit summarily affirmed. Filing No. 240. He has now filed a motion to vacate his conviction, Filing No. 243.
a. Successive § 2255 Filing
Having reviewed Filing No. 243, defendant’s third habeas petition, the court finds that the present § 2255 motion is properly characterized as “successive, ” within the meaning of 28 U.S.C. § 2255 and 2244(b), as defendant previously filed a § 2255 action in this Court. See Filing No. 221. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed procedural requirements on federal prisoners, like the defendant, who wish to file "second or successive" motions to vacate their sentences. The AEDPA amended 28 U.S.C. § 2244(b) to preclude the filing of any subsequent habeas corpus petition absent certification by a panel of the appropriate court of appeals for the circuit in which the district court is located, authorizing the district court to consider the successive motion or application. Also, 28 U.S.C. § 2255 provides that a second or successive section 2255 motion may not be filed without prior appellate court approval in the manner provided in
28 U.S.C. § 2244. 28 U.S.C. § 2244(b) states:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...