United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Brian Mort Jefferies, moves to correct his sentence because
of a possible Johnson claim under 28 U.S.C. §
2255. Respondent, United States of America, opposes the
motion and moves to dismiss Jefferies’ motion. Docket
7. For the following reasons, the court denies
entered a plea of guilty to one count of abusive sexual
contact of a child. He was sentenced by Judge Andrew Bogue to
400 months in custody. Case No. 07-50103 (D.S.D.), docket 43.
Jeffries appealed his sentence. The Eighth Circuit Court of
Appeals found that the district court had improperly
increased his guideline range when it applied an enhancement
under U.S.S.G. section 4B1.5(a) for being a repeat and
dangerous sex offender against minors. United States v.
Jeffries, 569 F.3d 873, 877 (8th Cir. 2009).
The judgment was reversed and the matter was remanded to the
district court for resentencing. On September 28, 2009, after
a hearing, the district court sentenced Jeffries to 360
months in custody. Case No. 07-50103 (D.S.D.), docket 75.
This judgment was affirmed by the Eighth Circuit Court of
Appeals. Id. at docket 87. On April 7, 2011,
Jeffries filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255. He was denied relief by
the district court. Case No. 11-5033 (D.S.D.), docket 19. The
district court decision denying habeas relief was affirmed by
the Eighth Circuit Court of Appeals in Jeffries v. United
States, 721 F.3d 1008 (8th Cir. 2013). On
January 16, 2014, the district court entered an order
correcting the spelling of Jeffries’ name to Jefferies.
Case No. 11-5033 (D.S.D.) at docket 47.
now moves to correct his sentence because of a new rule of
constitutional law that was announced by the United States
Supreme Court in Johnson v. United States, 135 S.Ct.
2551 (2015). By standing order of the Chief Judge for the
District of South Dakota, the Federal Public Defender was
appointed to represent Jefferies. The Federal Public Defender
filed a notice of intent not to supplement Jefferies’
pro se filing. (Docket 4). The United States now moves to
dismiss Jefferies’ motion to correct his sentence for
failure to state a claim. (Docket 7).
United States contends that this court lacks jurisdiction
over this matter because this is a second petition to vacate
under 28 U.S.C. § 2255 and it has not been certified by
a panel of the court of appeals under 28 U.S.C. §
2255(h). This court agrees. Under 28 U.S.C. §
2244(b)(3)(A), a second or successive application for habeas
relief can only be filed in district court if it is
authorized by the court of appeals. Without authorization,
the district court must dismiss the petition. 28 U.S.C.
§ 2244(b)(4). Because Jefferies previously filed a
petition for habeas relief that was denied, he needs to
obtain authorization from the Eighth Circuit Court of Appeals
to file a second petition before this court can exercise
jurisdiction over the matter. Thus, this petition is
dismissed without prejudice.
district court denies a petitioner’s § 2255
motion, the petitioner must first obtain a certificate of
appealability before an appeal of that denial may be
entertained. Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). This certificate may be issued “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(2). A
“substantial §§showing” is one that
demonstrates “reasonable jurists would find the
district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a]
substantial showing is a showing that issues are debatable
among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further
proceedings.” Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997). The court finds that Jefferies has not made
a substantial showing that his claim is debatable among
reasonable jurists, that another court could resolve the
issues raised in that claim differently, or that a question
raised by that claim deserves further proceedings.
Consequently, a certificate of appealability is denied.
did not obtain permission from the Eighth Circuit Court of
Appeals to file a successive petition for relief under 28
U.S.C. § 2255. As a result, this court does not have
jurisdiction to consider his petition and it is dismissed
without prejudice. Thus, it is
that Jefferies’ Motion to Correct his sentence is
denied (Docket 1).
FURTHER ORDERED that the United States’ motion to