United States v. Porter ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
)
) Criminal Acti0n No. 93-315-03(RCL)
v. )
) t
JEROME A. PORTER, ) F m L E D
) SEP ~ 2 2009
Defendant. ) NGTON CLERK
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MEMORANDUM
Defendant Jerome Porter’s petition for leave to file a motion under 28 U.S.C. § 2255 is
before this Court. For the following reasons Mr. Porter’s motion is transferred to the Court of
Appeals for consideration.
Mr. Porter previously filed a § 2255 motion on January 15, 1999. Dkt. 178. This Court’s
denial was subsequently affirmed by the Court of Appeals. Um``ted States v. Porter, 2003 WL
l79852, at *l (D.C. Cir. January 24, 2003). As such, Mr. Porter’s petition is a second or
successive petition and prior to consideration by this Court, his motion must be certified by a
panel of the Court of Appeals. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). As no such
certification has been obtained, this Court lacks jurisdiction to consider Mr. Porter’s motion.
Burton v. Stewart, 549 U.S. 147, 157 (2007); M00re v. Dep ’t of Justice, No. 98-5085, 1998 WL
54542l, at *l (D.C. Cir. July 17, 1998); Judson v. Um'ted States, No. 97-5140, 1998 WL 3l5593,
at *1 (D.C. Cir. May 29, 1998); see also Farris v. United States, 333 F.3d 121 l, 1216 (l lth Cir.
2003). The Court thinks the appropriate action is then to transfer the petition to the Court of
Appeals for their consideration. Cephas v. Nash, 328 F.3d 98, 104 n.5 (2d Cir. 2003); see also
Harris v. United States, 522 F. Supp. 2d 199, 203 (D.D.C. 2007); see also Liriano v. United
States, 95 F.3d 119, 123 (2nd Cir. 1996) (per curiam); In re Sims, 111 F.3d 45, 47 (6th Cir.
l997); Colemarz v. United States, 106 F.3d 339, 340-41 (10th Cir. 1997).
Notwithstanding the transfer to the Court of Appeals, it is unlikely defendant’s claim will
prevail. ln Blakely v. Washington, 542 U.S. 296 (2004), the U.S. Supreme Court held that the
Sixth Amendment prohibits judges from enhancing criminal sentences based on facts that are not
decided by a jury or admitted by the defendant. However, this Circuit has held that United States
v. Booker, 543 U.S. 220 (2005), which applied the Blakely rule to the federal sentencing
guidelines, is not retroactively applicable to cases on collateral review. See In re Fashina, 486
F.3d 1300, 1306 (D.C. Cir. 2007);111 re Zambrano, 433 F.3d 886, 888 (D.C. Cir. 2006).
As such, it is hereby ordered that Mr. Porter’s § 2255 motion be transferred to the Court
of Appeals for their consideration as to whether it meets the standards set for under 28 U.S.C §
2244.
A separate order shall issue this date.
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ROY@E c. LAMBERTH
Chief Judge
United States District Court