Immel v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JON VERNON IMMEL, Petitioner, v. Case No. 20-cv-652-JPG UNITED STATES OF AMERICA, Respondent. MEMORANDUM AND ORDER This matter comes before the Court on petitioner Jon Vernon Immel’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). It has come to the Court’s attention that this is not Immel’s first § 2255 motion. He filed his first motion in 2016, and the Court denied it. See Immel v. United States, Case No. 16-cv-522-DRH. It is true that the Court improperly construed Immel’s original filing in his 2016 case as a § 2255 motion without giving him a chance to withdraw it in light of the consequences of filing such a motion, as required by Castro v. United States, 540 U.S. 375, 377 (2003). The Court acknowledged as much in its September 23, 2016, order in that case (No. 16-cv-522-DRH, Doc. 14 at 2-3). However, in that order, the Court construed a later filing by Immel in the same case (No. 16-cv522-DRH, Doc. 12) as a bona fide § 2255 motion, noting that Immel explicitly labeled it as such (No. 16-cv-522-DRH, Doc. 14 at 3). Thus, this is, in fact, Immel’s second § 2255 motion. In order for the Court to consider a successive petition, the Seventh Circuit Court of Appeals must certify the successive petition pursuant to 28 U.S.C. § 2255 (h). Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). It has not done so. Therefore, the Court does not have jurisdiction to entertain the pending § 2255 motion. Accordingly, the Court hereby DISMISSES this action for lack of jurisdiction and DIRECTS the Clerk of Court to enter judgment accordingly. Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of appealability of this final order adverse to the petitioner. A certificate of appealability is required to appeal from the dismissal of an unauthorized second or successive collateral attack. Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam). A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing where the Court denies relief on procedural grounds, the petitioner must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); accord Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012). Thus, disputes about procedural or statutory issues in a case cannot justify a certificate of appealability unless “a substantial constitutional issue lurks in the background, and the statutory question is independently substantial.” Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001) (question of a petition’s timeliness) (citing Slack, 529 U.S. at 483-85 ). The Court finds that Immel has not made a showing that reasonable jurists would find debatable the question whether his current petition is an unauthorized successive petition. Therefore, the Court DECLINES to issue a certificate of appealability. The Court further notes that Immel seeks relief under the Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court held that, in a prosecution under 18 U.S.C. § 922 (g) and 18 U.S.C. § 924 (a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Although relief under § 2255 is at least temporarily foreclosed to Immel until he is authorized to file a successive petition, he may be able to obtain relief in a petition for a writ of habeas corpus under 28 U.S.C. § 2241 filed in the judicial district of his incarceration. IT IS SO ORDERED. DATED: July 9, 2020 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE