USA v. Strickland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHNNYLEE PRESTON BURK,
Defendant.
Case No. 3:15-cr-00088-SLG-3
ORDER REGARDING MOTION TO PROCEED PRO SE AND
SUPPLEMENTAL AMENDED 28 U.S.C. § 2255 MOTION
On October 21, 2020, the Court issued an order dismissing defendant Johnnylee
Preston Burk’s second or successive 28 U.S.C. § 2255 motion for lack of jurisdiction
because Mr. Burk had not first obtained the Ninth Circuit’s permission to such a motion.1
Later that same day, the Court received in the mail two pro se filings from Mr. Burk: a
“Motion to Proceed Pro Se” (Docket 299) and a “Supplemental Amended § 2255” (Docket
300). No government response is necessary for the Court’s determination of these filings.
In his motion to proceed pro se, Mr. Burk sees to “enter into this matter pro se in
order to litigate the current § 2255 proceedings.”2 The Court declines to allow Mr. Burk
to proceed pro se because there are no “current § 2255 proceedings” in which he could
represent himself. The Court has already dismissed the second/successive § 2255
1 Docket 298.
2 Docket 299 at 1.
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Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Motion to Proceed Pro Se and Supplemental Amended § 2255
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motion.3
Because the Court will not allow Mr. Burk to appear pro se at this time, Mr. Burk
has no authority to file a pro se “Supplemental Amended § 2255.”4 However, even if the
Court considered the “Supplemental Amended § 2255” motion on its merits, it would not
change the outcome. In his “Supplemental Amended § 2255,” Mr. Burk asserts that his
newly filed § 2255 motion is an amendment of his prior § 2255 motion and not a prohibited
second or successive § 2255 motion.5 This is the same issue already addressed by Mr.
Burk’s counsel and determined by the Court in its order at Docket 298. Mr. Burk also
contends that he “withdraws any question of the Amended § 2255 needing a [certificate
of appealability] from the Ninth Circuit Court of Appeals [because] it does not require [sic]
to receive a COA and such legal arguments or questions are going to waste the Court
and the government’s time litigating a non-issue.”6 Mr. Burk—or even his counsel—have
no authority to withdraw a question of jurisdiction, because district courts have an
independent obligation to determine whether they have jurisdiction to hear a § 2255
claim.7 In short, jurisdiction is not an issue that a party can dismiss or withdraw, as Mr.
3 Docket 298.
4 D. Ak. L. Civ. R. 11.1(a)(3) (“A party who has appeared by counsel may not thereafter act on the
party’s own behalf in the action unless an order of withdrawal of counsel has been entered by the
court.”); D. Ak. L. Crim. R. 1.1(b) (adopting the Local Civil Rules in criminal proceedings).
5 Docket 300 at 2.
6 Docket 300 at 2.
7 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) (“Federal courts are
always ‘under an independent obligation to examine their own jurisdiction,’ and a federal court
may not entertain an action over which it has no jurisdiction.”); Scholastic Entm't, Inc. v. Fox
Entm't Grp., Inc., 336 F.3d 982, 985 (9th Cir. 2003) (“It has long been held that a judge can dismiss
sua sponte for lack of jurisdiction.”).
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Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Motion to Proceed Pro Se and Supplemental Amended § 2255
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Burk seeks to do. Thus, even if Mr. Burk’s counsel had not addressed the issue of
whether he was filing a second or successive § 2255 motion—which counsel properly
addressed in light of the procedural posture of this case and in correct anticipation that
the Court would consider this issue—the Court would still have dismissed the
unauthorized § 2255 motion.
In light of the foregoing, IT IS ORDERED that the motion at Docket 299 is DENIED
and the motion at Docket 300 is DISMISSED.
DATED this 22nd day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason_____________
UNITED STATES DISTRICT JUDGE
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