United States District Court, E.D. Michigan, Southern Division
ORDER TRANSFERRING PETITIONER'S
“SECOND-IN-TIME § 2255 MOTION” (DOC. 119) TO
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
COHN UNITED STATES DISTRICT JUDGE
a criminal case which has long since closed.
Defendant/Petitioner Jerry Gonyea (Petitioner) is serving a
sentence of 351 months following his conviction on bank
robbery and firearms charges. Before the Court is
Petitioner's “Second-In-Time § 2255
Motion.” For the reasons that follow, the motion will
be transferred to the Court of Appeals for the Sixth Circuit
for a determination of whether Petitioner may file a second
§ 2255 motion.
1994, Petitioner and an accomplice robbed two banks during
which Petitioner brandished firearms and terrorized those
present, including children, with threats of death.
Petitioner was also on state parole at the time of the
offenses. Petitioner initially plead guilty to two counts of
bank robbery, in violation of 18 U.S.C. § 2113 and two
counts of using or carrying a firearm during the commission
of a felony, in violation of 18 U.S.C. § 924(c).
Following protracted pre-trial proceedings, during which
Petitioner withdrew his plea and attempted, unsuccessfully,
to pursue a diminished capacity defense, Petitioner again
plead guilty in 1996 to the same four counts. The Rule 11
agreement called for a sentence at the bottom end of the
guidelines, 351 months. Petitioner also reserved the right to
appeal the preclusion of his diminished capacity defense. As
noted above, the Court sentenced Petitioner to 351 months.
Petitioner appealed, arguing that he should have been allowed
to present a diminished capacity defense. The Court of
Appeals for the Sixth Circuit affirmed Petitioner's
conviction. United States v. Gonyea, 140 F.3d 649
(6th Cir. 1998).
twelve years later, on August 25, 2010, Petitioner filed a
motion for relief from judgment under Fed.R.Civ.P. 60(b) in
which he challenged his sentence under § 924(c). The
Court denied the motion on October 28, 2010. See
Doc. 106. Petitioner did not appeal. Thereafter, almost two
years later, on August 16, 2012, Petitioner filed a motion
under § 2255, challenging the computation of his
sentence and raising complaints regarding the conditions of
his confinement. The Court denied the motion. See
Doc. 116. Petitioner did not appeal.
in 2015, Petitioner filed a petition under 28 U.S.C. §
2241. Petitioner argued that that he is entitled to relief
(1) based on the Supreme Court's decisions in
Missouri v. Frye, 132 S.Ct. 1399 (2012), and
Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012),
trial counsel was ineffective for misadvising Petitioner
regarding the prospects of raising certain defenses at trial,
(3) his sentence is too long, and (4) he has failed to
receive sentencing credit for time served in the state
system. Gonyea v. United States, 15-10116. The
matter was before a different judge in this district who
denied the petition. See Doc. 5 in No. 15-10116.
Petitioner appealed. The Sixth Circuit affirmed. Gonyea
v. Terris, No. 15-1199 (6th Cir. Sept, 10,
in 2015, Petitioner filed a petition for a writ of audita
querela. Goneya v. United States, 15-10268
which was assigned to the undersigned. Petitioner raised the
same claims in his § 2241 motion. The Court denied the
petition. See Doc. 2 in No. 15-10268. Petitioner
appealed. The Sixth Circuit affirmed. Gonyea v. United
States, No. 15-1227 (6th Cir. Oct. 8, 2015).
December 2016, Petitioner filed the instant motion under
§ 2255. (Doc. 119). As noted in the title, this is
Petitioner's second § 2255 motion. Petitioner seeks
relief based on the Supreme Court's decision in Dean
v. United States, 137 S.Ct. 1170 (2017).
§ 2244, “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. §
2244(b)(3)(A). A district court is required to transfer to
the Sixth Circuit any second or successive petition for
habeas relief filed in the district court without
authorization, pursuant to 28 U.S.C. § 1631. In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).A district court
does not have jurisdiction to entertain a successive
post-conviction motion or petition for writ of habeas corpus
in the absence of an order from the court of appeals
authorizing the filing of such a successive motion or
petition. Ferrazza v. Tessmer, 36 F.Supp.2d 965, 971
(E.D. Mich. 1999).
the Court TRANSFERS this matter to the Sixth Circuit under 28
U.S.C. § 1631 for a determination of whether Petitioner
is entitled to a certificate of authorization to file a
successive motion to vacate under § 2255.