Opinion

Gipson v. United States

Court
District Court, E.D. Missouri
Filed
Feb 21, 2024
Cited by
0 cases
Authority
More cited than 24.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

DARION GIPSON, )

)

Movant, )

)

v. ) No. 1:24-CV-00026 SNLJ

)

UNITED STATES OF AMERICA, )

)

Respondent, )

MEMORANDUM AND ORDER

This matter is before the Court upon review of Darion Gipson’s letter, which was received

by the Court on February 12, 2024. [ECF No. 1]. The letter indicates an intent to seek relief from

judgment pursuant to United States v. Taylor, 142 S. Ct. 2015 (2022), which the Court construes

as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The Court will deny

the motion without prejudice as an unauthorized second or successive motion under 28 U.S.C. §

2255, and this action will be dismissed.

Background

On April 19, 2016, movant pled guilty to Interference with Commerce by Threat or

Violence and Possession of a Firearm in Furtherance of a Crime of Violence. United States v.

Gipson, No. 1:16-CR-6-SNLJ (E.D. Mo.). On July 26, 2016, the Court sentenced movant to 154

months’ imprisonment. He did not file an appeal of his conviction or sentence.

On April 9, 2018, movant filed a motion to vacate, set aside or correct his sentence pursuant

to 28 U.S.C. § 2255. Gipson v. United States, 1:18-CV-80-SNLJ (E.D. Mo.). The motion to vacate

was dismissed as untimely on April 30, 2018. Movant did not appeal the dismissal of his motion

to vacate.

On March 17, 2020, movant filed a second motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. Gipson v. United States, 1:20-CV-55-SNLJ (E.D. Mo.). He alleged

he was innocent of the crime for which he was convicted. The Court denied the motion as

successive and dismissed the action because movant did not petition the Eighth Circuit Court of

Appeals for the ability to file a second or successive motion to vacate. See 28 U.S.C. § 2244(a)

and § 2255(h) (district courts may not entertain a second or successive motion to vacate unless it

has first been certified by the Court of Appeals).

On June 8, 2020, movant filed a third motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. Gipson v. United States, 1:20-CV-126-SNLJ (E.D. Mo.). He alleged

the Court erred by not providing him with a downward departure sentence reduction at sentencing

because he is bipolar, failed to send him to mental health court, and his trial attorney provided him

with ineffective assistance of counsel. Because movant did not certify his petition by the Court of

Appeals for the Eighth Circuit, the Court denied and dismissed the motion for the same reason as

explained in Gipson v. United States, 1:20-CV-55-SNLJ (E.D. Mo.).1 Movant subsequently sought

authorization to file a successive petition, which was denied by the Court of Appeals for the Eighth

Circuit. Gipson v. United States, No. 20-2434 (8th Cir. 2020). The mandate was issued on

September 30, 2020.

On September 12, 2022, the Court received a letter from the movant, which was filed in

his criminal case. See United States v. Gipson, No. 1:16-CR-6-SNLJ (E.D. Mo.), ECF No. 156.

Movant wrote, “I[’]m writing you[] about a Supreme Court ruling on the Taylor case . . . I believe

I have a Taylor claim so I[’]m tryin[g] to get my case reviewed.” Id. The Court construed the letter

1Movant also cited to the First Step Act as another basis for a sentence reduction. The Court explained that

movant’s conviction is not the type covered by the First Step Act.

as a motion for relief from judgment, administratively terminated the motion, and opened a civil

action under 28 U.S.C. § 2255. Id., ECF No. 157; see also Gipson v. United States, No. 1:22-CV-

120 SNLJ (E.D.Mo.). Although the Court denied movant’s motion for relief as successive on

September 20, 2022, the Court ordered that movant’s motion to vacate be transferred to the Eighth

Circuit Court of Appeals to obtain authorization to file a successive § 2255. Id. On November 15,

2022, movant’s motion to file a successive motion to vacate was denied by the Court of Appeals.

See Gipson v. United States, No. 22-2977 (8th Cir. 2022).

Movant filed the instant letter seeking relief for his conviction under a “new change in law”

on February 12, 2024. The Court construes movant’s letter as one seeking relief from judgment

pursuant to United States v. Taylor, 142 S. Ct. 2015 (2022), pursuant to 28 U.S.C. § 2255.

Discussion

The motion is a “second or successive motion” within the meaning of 28 U.S.C. §§ 2244

and 2255, but it has not been certified by the United States Court of Appeals for the Eighth Circuit.

According to 28 U.S.C. § 2255(h):

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.

Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States

District Courts, the Court is required to undertake a preliminary review of the motion before

directing the United States to respond. Having reviewed the motion, and for the reasons discussed

below, movant’s § 2255 motion must be denied and dismissed as successive.

A district court is not “required to entertain an application for a writ of habeas corpus to

inquire into the detention of a person pursuant to a judgment of a court of the United States if it

appears that the legality of such detention has been determined by a judge or court of the United

States on a prior application for a writ of habeas corpus.” 28 U.S.C. § 2244(a). Rather, under the

Antiterrorism and Effective Death Penalty Act of 1996, a federal inmate seeking relief under 28

U.S.C. § 2255 must first “receive certification from the court of appeals to file a second or

successive 2255 motion.” United States v. Brown, 915 F.3d 1200, 1201 (8th Cir. 2019). See also

28 U.S.C. § 2244(b)(3)(A) (“Before 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”).

There is no indication that movant has sought, much less obtained, the necessary

authorization before filing the instant petition. As a result, the Court concludes it lacks jurisdiction

to consider the petition. The Court finds it would not be in the interest of justice to transfer this

case to the United States Court of Appeals for the Eighth Circuit and will instead dismiss the

motion to vacate.

The Court has considered whether to issue a certificate of appealability. To issue a

certificate of appealability, the Court must find a substantial showing of the denial of a federal

constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial

showing is a showing that issues are debatable among reasonable jurists, a Court could resolve the

issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th

Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994)). Movant has made no such

showing in this case, and the Court will not issue a certificate of appealability.

Accordingly,

IT IS HEREBY ORDERED that the instant motion to vacate is DENIED and

DISMISSED, without prejudice, because movant did not obtain the required authorization from

the United States Court of Appeals for the Eighth Circuit.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

A separate Order of Dismissal shall accompany this Memorandum and Order.

Dated this 21" day of February, 2024.

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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