Memorandum Opinion — No. 1:99-cr-00279 (Dkt. 120, N.D. Ohio)

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A Memorandum Opinion, Doc #: 120, filed August 15, 2007 in Jermaine L. Levy v. United States of America, Case Nos. 1:07CV1806, 1:02CV0671 and 1:99CR0279 (Case: 1:99-cr-00279-DCN), in the U.S. District Court for the Northern District of Ohio, Eastern Division, dated August 13, 2007 and signed by David D. Dowd, Jr., U.S. District Judge. The petitioner filed a second petition under 28 U.S.C. Section 2255 to correct a ten year sentence imposed for convictions including conspiracy to possess cocaine with intent to distribute, tax evasion and crimes related to witness intimidation. The court denies the second petition as successive, construes his Rule 60(b) motion as another successive petition and denies it, and declines to issue a certificate of appealability.

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Case: 1:99-cr-00279-DCN Doc #: 120 Filed: 08/15/07 1 of 4. PageID #: 17




     DOWD, J.

                               UNITED STATES DISTRICT COURT
                                NORTHERN DISTRICT OF OHIO
                                     EASTERN DIVISION

 Jermaine L. Levy,                                 )
                                                   )     CASE NO.1:07CV1806
                Petitioner,                        )             1:02CV0671
                                                   )             1:99CR0279
         v.                                        )
                                                   )     MEMORANDUM OPINION
 United States of America,                         )     (Case No. 1:07CV1806, Doc. No. 1).
                                                   )     (Case No. 1:02CV0671, Doc. No. 24)
                Respondent.                        )
                                                   )

                                           I. Introduction

         Before the Court, in Case No. 1:07CV1806, is Defendant-Petitioner Jermaine Levy’s

 second petition for relief pursuant to 28 U.S.C. Section 2255. Petitioner seeks to correct the ten

 year sentence imposed by the Court following Petitioner’s convictions for conspiracy to possess

 with the intent to distribute cocaine, tax evasion and crimes related to the planning and execution

 of witness intimidation in the form of throwing acid causing serious harm to a witness in the

 criminal matter.1

         Shortly after filing his second Section 2255 petition, on July 2, 2007, Petitioner filed a

 Motion pursuant to Fed. R. Civ. P. 60(b) for relief from the decision in Petitioner’s first Section

 2255 petition, which was filed in 2002 and assigned Case No. 1:02CV0671. The Court denied

 Petitioner’s first petition for habeas relief in a Memorandum Opinion and Judgment Entry filed

 July 23, 2002. See Case No. 1:02CV0671, Docket No. 13.


 1
 With respect to the attack on the witness, Petitioner pled guilty to several counts
 including solicitation to commit a crime of violence, retaliating against a witness in
 violation of 18 U.S.C. Section 1513 and being an accessory after the fact in violation of
 18 U.S.C. Section 3.
Case: 1:99-cr-00279-DCN Doc #: 120 Filed: 08/15/07 2 of 4. PageID #: 18




 (1:07CV1806)
 (1:02CV0671)
 (1:99CR0279)

        Shortly after the 2002 decision, Petitioner filed a motion pursuant to Fed. R. Civ. P. 59 to

 amend the judgment. The Court denied the Rule 59 motion in what became another ten page

 Memorandum Opinion analyzing the claims brought by Petitioner, which the Court found to be

 without merit. Case No. 1:02CV0671, Docket No. 17. The Sixth Circuit denied Petitioner’s

 application for a certificate of appealability. See Case No.1:02CV0671, Docket No. 23.

        For the following reasons, Petitioner’s second petition for relief pursuant to Section 2255

 and Petitioner’s Rule 60(b) motion are denied.

                                           II. Discussion

 A. Case No. 1:07CV1806, Docket No. 1

        Pursuant to 28 U.S.C. Section 2244, Petitioner must seek leave of the Sixth Circuit Court

 of Appeals before filing a second or successive Section 2255 petition with the Court. Petitioner

 makes no showing of receiving the necessary leave of court to file a second petition.

 Accordingly, the Court dismisses the petition as a successive petition.

 B. Case No. 1:02CV0671, Docket No. 24

        Petitioner has also filed a separate motion, pursuant to Rule 60(b), in his earlier Section

 2255 case. However, rather than consider the matter according to Rule 60(b), the Court

 construes this motion to vacate the judgment as defendant’s third attempt at habeas relief

 pursuant to 28 U.S.C. 2255. In In re Nailor, 487 F.3d 1018, (6th Cir. 2007), the Sixth Circuit

 provided guidance on when the district courts should construe a Rule 60(b) motion as in fact a

 habeas petition pursuant to 28 U.S.C. 2255:



                                                  2
Case: 1:99-cr-00279-DCN Doc #: 120 Filed: 08/15/07 3 of 4. PageID #: 19




 (1:07CV1806)
 (1:02CV0671)
 (1:99CR0279)

         Because of all of Nailor’s arguments could have been raised in the first Section
         2255 motion, the Section 2255 motion at issue is a second or successive Section
         2255 motion that requires our authorization for filing. . . . To obtain authorization,
         Nailor’s second or successive Section 2255 motion must be based upon:

                          (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.

 Nailor, 487 F.3d at 1023.

         Defendant does not claim that there is newly discovered evidence in support of his claim

 and he does not argue that there is a new rule of constitutional law now available to him that

 would afford him relief. As in Nailor, petitioner’s arguments could have been raised at the time

 of the filing of the first petition. Accordingly, the Court finds that the Rule 60(b) motion is also

 successive petition for habeas relief that requires authorization from the Sixth Circuit before it

 may proceed and Petitioner has made no showing of having obtained the required leave. For that

 reason, it is also denied.




                                                   3
Case: 1:99-cr-00279-DCN Doc #: 120 Filed: 08/15/07 4 of 4. PageID #: 20




 (1:07CV1806)
 (1:02CV0671)
 (1:99CR0279)

                                          III. Conclusion

        For the foregoing reasons, in Case No. 1:07CV1806, Petitioner Jermaine Levy’s second

 petition for relief pursuant to 28 U.S.C. Section 2255 is denied. Further, Petitioner’s Motion for

 Relief from Judgment pursuant to Fed. R. Civ. P. 60(b) in Case No. 1:02CV0671, which the

 Court construes as a successive petition made pursuant to 28 U.S.C. 2255, is also denied.

        Pursuant to 28 U.S.C. Section 2253(c) and Fed. R. App. P. 22(b), the Court declines to

 issue a certificate of appealability.




        IT IS SO ORDERED.


  August 13, 2007                                /s/ David D. Dowd, Jr.
 Date                                          David D. Dowd, Jr.
                                               U.S. District Judge




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