United States of America v. Johnson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA 	)
)
v. 	) 	CRIMINAL NO. 98-­‐00099-­‐CB
) 	CIVIL ACTION NO. 15-­‐00339-­‐CB
CORNELIUS KENYATTA CRAIG, 	)
)
Defendant/Petitioner 	)
ORDER
On May 26, 2015, this Court entered an order denying Petitioner’s § 2255
motion (Doc. 263) as a second or successive petition filed without certification of
the appellate court as required by 28 U.S.C.S § 2255(h). On June 25, 2015, Craig filed
yet another § 2255 motion. On July 13, 2015, Petitioner filed a notice of appeal (Doc.
270) with respect to the May 26th order. Generally speaking, “[t]he filing of a notice
of appeal is an event of jurisdictional significance-­‐it confers jurisdiction on the court
of appeals and divests the district court of its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982). To the extent that the most recent motion ostensibly raises issues not raised
in the prior motion, the notice of appeal does not divest this court of jurisdiction.
As to those issues, however, the certification requirement found in § 2255(h) still
applies. Consequently, the motion is due to be and hereby is DENIED.
Rule 11 of the Federal Rules Governing Section 2255 Proceedings requires
that the district court issue or deny a certificate of appealability when entering a
final order on a § 2255 motion. When a court denies a motion “on procedural
grounds without reaching the merits of any constitutional claims, . . . a petitioner
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will be granted a certificate of appealability only if [he] makes both a substantial
showing that he had a valid claim of the denial of a constitutional right, and a
substantial showing that the procedural ruling is wrong,” Jackson v. Crosby, 437 F.3d
1290, 1295 (11th Cir. 2006) (internal citations and quotations omitted) (citing Slack
v. McDaniel, 529 U.S. 473, 484 (2000) ). A “substantial showing means” that the
issues—both substantive and procedural—are debatable among jurists of reason.
Id. In this case, there is no need to consider the constitutional issue because no
jurist of reason could find that this § 2255 motion was not a second or successive
petition. Accordingly, the certificate of appealability is DENIED. Any appeal from
this order would be frivolous, therefore leave to appeal in forma pauperis is
prospectively DENIED.
DONE this the 3rd day of August, 2015.
s/Charles R. Butler, Jr.
Senior United States District Judge
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