United States of America v. Johnson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORNELIUS KENYATTA CRAIG, )
)
Petitioner, ) CIV. A. NO. 24-0222-KD-MU
)
vs. )
) CRIM. NO. 98-0099-KD-MU-3
UNITED STATES OF AMERICA, )
)
Respondent. )
REPORT AND RECOMMENDATION
This case is before the Court on Petitioner Cornelius Kenyatta Craig's motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 493). This
action has been referred to the undersigned for entry of a report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). It is
recommended that the instant motion be denied for lack of jurisdiction due to Craig's
failure to comply with 28 U.S.C. §§ 2244(b)(3)(A) & 2255(h).
I. Discussion
A. Background
Craig, who is currently serving a total term of imprisonment of 931 months for his
role in a string of carjackings in the Mobile area, filed his first § 2255 petition in 2001,
and his motion was denied. (Docs. 162 and 166). Craig appealed, and the Eleventh
Circuit denied his request for a certificate of appealability. (Doc. 251). On May 21,
2015, Craig filed a second § 2255 motion which was denied because he failed to obtain
authorization from the Eleventh Circuit to file a second or successive § 2255 motion.
(Docs. 263, 264). Then again, on June 25, 2015, Craig filed another § 2255 motion
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without the requisite certification from the Eleventh Circuit as required by § 2255(h).
(Docs. 269). This Court denied his motion for lack of jurisdiction. (Doc. 274). After filing
the June 2015 motion, Craig filed a notice of appeal with respect to the May 2015 order
denying his May § 2255 motion and denying a certificate of appealability. (Doc. 270).
The Eleventh Circuit denied his motion for a certificate of appealability. (Doc. 277).
In July 2016, Craig filed for and was granted permission from the Eleventh Circuit
Court of Appeals to file a successive § 2255 motion. (Doc. 294). He filed his successive
motion to vacate on August 22, 2016, and his motion was denied on September 12,
2016. (Docs. 298 and 302). On July 25, 2017, the Eleventh Circuit affirmed the district
court’s denial of Craig’s authorized successive § 2255 motion. (Doc. 319).
In January of 2017, Craig filed another application to file a successive § 2255
motion and, on February 17, 2017, the Court of Appeals denied his application to file a
second successive motion. (Doc. 318). However, on August 17, 2017, he filed another §
2255 motion to vacate in this Court. (Doc. 320). The Court denied this motion for lack of
jurisdiction because Craig had not obtained authorization from the Court of Appeals to
file a successive motion. (Doc. 321). In February of 2019, Craig filed yet another
application to file a successive § 2255 motion and, in March of 2019, the Court of
Appeals denied his application to file another successive motion. (See Doc. 401 at p. 2).
On May 13, 2021, Craig filed yet another § 2255 motion in this Court without
authorization, which was again denied for lack of jurisdiction. (Docs. 394 and 401).
Craig, on July 29, 2024, filed another § 2255 motion to vacate, which is now
before the Court. (Doc. 493). In his current motion, he requests relief pursuant to the
Supreme Court’s ruling in United States v. Taylor, 596 U.S. 845 (2022), asserting that
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his conviction or sentence is unlawful, as the predicate offenses on which his carjacking
convictions were based may no longer constitute crimes of violence. (Id.).
B. Analysis
“Before presenting a second or successive motion, the moving party must obtain
an order from the appropriate court of appeals authorizing the district court to consider
the motion ....” Rule 9 of the Rules Governing Section 2255 Proceedings for the United
States District Courts.
A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain—(1) newly
discovered evidence that, 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 factfinder would have found the movant guilty of the offense;
or (2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h); see also Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir.
2014) (“If a court determines that a § 2255 motion is ‘second or successive,’ the motion
must be certified by the court of appeals before the district court may reach the merits of
the motion.”).
“Without authorization, the district court lacks jurisdiction to consider a second or
successive petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per
curiam); see also Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1278 (11th Cir.
2014) (per curiam) (“[A] district judge lacks jurisdiction to decide a second or successive
petition filed without [the] authorization” of the court of appeals.”). As there is no
indication in the record that the Eleventh Circuit Court of Appeals has granted Craig
leave to bring his present, successive § 2255 motion, this Court lacks jurisdiction to
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consider its merits. Accordingly, Craig's present § 2255 motion (Doc. 493) is due to be
DENIED for lack of jurisdiction.
C. Certificate of Appealability
Generally, “[t]he district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant” in a § 2255 proceeding. Rule 11(a)
of the Rules Governing § 2255 Proceedings. However, a COA is unnecessary when, as
here, the district court is dismissing a successive petition for lack of jurisdiction. See
Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam).
D. Appeal In Forma Pauperis
“An appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).
A party demonstrates good faith by seeking appellate review of any issue
that is not frivolous when examined under an objective standard. See
Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed.
2d 21 (1962). An issue is frivolous when it appears that “the legal theories
are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.
1993) (citations omitted). In other words, an IFP action is frivolous, and thus
not brought in good faith, if it is *860 “without arguable merit either in law or
fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). More specifically,
“arguable means capable of being convincingly argued.” Sun v. Forrester,
939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations
omitted). Nevertheless, where a “claim is arguable, but ultimately will be
unsuccessful,” it should be allowed to proceed. Cofield v. Ala. Pub. Serv.
Comm'n, 936 F.2d 512, 515 (11th Cir. 1991).
Ghee v. Retailers Nat. Bank, 271 F. App'x 858, 859-60 (11th Cir. 2008) (per curiam)
(unpublished).
As Craig's present § 2255 motion is clearly due to be denied as an unauthorized
second or successive motion, the undersigned RECOMMENDS the Court certify that
any appeal by Craig of the denial of the present § 2255 motion would be without merit
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and therefore not taken in good faith, thus denying him entitlement to appeal that
decision in forma pauperis.1
II. Conclusion
In accordance with the foregoing analysis, it is RECOMMENDED that Petitioner
Cornelius Kenyatta Craig's Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Doc. 493) be DENIED for lack of jurisdiction, and that the Court find
Craig not entitled to proceed in forma pauperis on any appeal of that denial.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific
written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of
the Rules Governing Section 2255 Proceedings for the United States District Courts;
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1,
“[a] party failing to object to a magistrate judge's findings or recommendations contained
in a report and recommendation in accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the district court's order based on
unobjected-to factual and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. To be specific, an objection must identify the
1 Should the Court adopt this recommendation and deny leave to appeal in forma
pauperis, the movant may file a motion to proceed on appeal in forma pauperis with the
Eleventh Circuit Court of Appeals in accordance with Federal Rule of Appellate
Procedure 24(a)(5).
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specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge's report and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
Done this 30th day of July, 2025.
s/P. Bradley Murray_________________
UNITED STATES MAGISTRATE JUDGE
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