United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
2017, Terrance Paul McAbee, then a federal prisoner
incarcerated in the Federal Correctional Institution at Big
Spring, Texas, filed a "Notice of Constitutional
Challenge and Motion to Intervene with an Injunction."
See McAbee v. United States, Civ. No. 17-4090,
Docket No. 1 (D.S.D.). The court gave Mr. McAbee notice that
it construed his pleading to be a habeas petition pursuant to
28 U.S.C. § 2255 and gave him the opportunity to
withdraw his pleading if he did not intend to submit a §
2255 motion. IcL at Docket No. 3. Id. Mr. McAbee did
not withdraw his pleading. Thereafter, the court screened Mr.
McAbee's motion under § 2255 and recommended
dismissal with prejudice because the motion was untimely, a
recommendation that was adopted in full by the district
court. IcL at Docket Nos. 6 & 7.
Mr. McAbee has filed another pleading with this court
nominated as a § 2255 motion to vacate, set aside, or
correct his sentence. See Docket No. 1. In his new
motion, Mr. McAbee attacks his underlying federal conviction
on grounds of due process, that alcohol consumption
invalidated his plea of guilty, the government concealed from
the court certain breathalyzer evidence, the dates in the
plea agreement conflict with the date that document was
actually signed, insufficient [sic] counsel, and invalid
sentencing enhancements. IcL Mr. McAbee alleges he is
currently serving his federal term of incarceration at FCI El
Reno prison, which is located in El Reno, Oklahoma.
See Docket No. 2. However, the return address on his
§ 2255 motion was Carbondale, Illinois. See
Docket No. 1-2.
matter has been referred to this magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, district
courts are not allowed to entertain a § 2255 motion if
the legality of the movant's detention was previously
determined by a judge or court of the United States on a
prior application for habeas relief. See 28 U.S.C.
§ 2244(a). Here, this court previously determined the
legality of Mr. McAbee's detention in his 2017 motion for
relief pursuant to § 2255. If a federal prisoner wishes
to present a second or successive motion under § 2255,
he must obtain permission from the appropriate court of
appeals (here, that would be the Eighth Circuit) to file the
motion. See 28 U.S.C. § 2255(h). The court of appeals
will grant such permission to file a second or subsequent
§ 2255 motion if one of two circumstances is presented:
(1) the movant has newly discovered evidence which, if proven
and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable finder of fact would have found the movant
guilty; or (2) a new rule of constitutional law, made
retroactive to habeas cases, has been decided that was
previously unavailable. IcL The limitation on filing a second
or successive § 2255 motion is jurisdictional.
United States v. Lee, 792 F.3d 1021, 1022 (8th Cir.
2015). The Eighth Circuit has held that a § 2255 motion
filed after an earlier § 2255 motion was dismissed as
untimely is subject to the restriction on second or
successive filings. Diaz-Diaz v. United States, 297
Fed.Appx. 574, 575 (8th Cir. 2008) (per curiam)
Mr. McAbee were to allege either of the situations described
in § 2255(h) exists in his case, the determination
whether to allow the second or successive § 2255
petition rests with the Eighth Circuit, not with this
district court. 28 U.S.C. § 2255(h). This court lacks
jurisdiction to make that determination. Lee, 792 F.3d at
court notes that in 2016 an amended judgment was entered as
to Mr. McAbee. See United States v. McAbee, Crim.
No. 14-40027(1), Docket No. 86 (D.S.D.) There are some
circumstances where the entry of an amended judgment can
"wipe the slate clean" of post-conviction motions
previously filed for purposes of the restriction found at
§ 2255(h). Dvab v. United States, 855 F.3d 919,
923 (8th Cir. 2017). However, those circumstances are not
present here. Mr. McAbee in his instant § 2255 motion
does not seek to attack or modify any decision touching on
the amendment to his judgment. Rather, he seeks to attack or
modify his sentence based on facts and legal theories that
were present before he filed his first § 2255 motion in
2017 and that were available to have been raised by him at
the time of the filing of that first motion. In addition, Mr.
McAbee's first § 2255 motion from 2017, which itself
was untimely, was filed after the amended judgment
was entered in his case in 2016. Accordingly, the court
concludes the instant § 2255 motion filed by Mr. McAbee
is a second or successive petition. As such, he is required
to obtain the permission of the Eighth Circuit before this
court may entertain that motion. See 28 U.S.C. §
magistrate judge respectfully recommends that Mr.
McAbee's § 2255 motion be dismissed for lack of
jurisdiction as it is a second or successive petition filed
in this court without having obtained the prior permission to
file such a motion from the Eighth Circuit. Alternatively,
the court recommends Mr. McAbee's motion be transferred
to the Eighth Circuit for consideration by that court under
§ 2255(h). See Boyd v. United States, 304 F.3d
813, 814 (8th Cir. 2002) (directing district courts presented
with second or successive petitions to either dismiss the
petition or transfer it to the Eighth Circuit).
OF RIGHT TO APPEAL
parties have fourteen (14) days after service of this Report
and Recommendation to file written objections pursuant to 28
U.S.C. § 636(b)(1), unless an extension of time for good
cause is obtained. See Fed.R.Civ.P. 72; 28 U.S.C.
§ 636(b)(1)(B). Failure to file timely objections will
result in the waiver of the right to appeal questions of
fact. IcL Objections must be timely and specific in order to
require de novo ...