United States District Court, E.D. Tennessee
RODNEY B. MACK, JR., Petitioner,
WARDEN SHINN, Respondent.
B. Mack, Jr., (“Petitioner”), a federal prisoner
who is currently confined in a federal correctional facility
in Louisiana, submitted to a federal district court in the
Central District of California [Doc. 1], what he labeled as
petition for a writ of habeas corpus under 28 U.S.C. §
2241 [Id.]. The district court determined that the
claims in the § 2241 petition actually were challenges
to the legality of Petitioner's conviction or sentence
and that such claims must be made in a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255 filed
in the sentencing court [Doc. 3]. The district court then
transferred the case to this Court because it is the
sentencing court [Id.]. Although the case was
docketed as a § 2241 petition, Petitioner is challenging
the legality of his conviction or sentence and, as the
transferor district court recognized [Id.], such
claims typically can only be presented in a § 2255
motion. Therefore, the § 2241 petition is construed to
be a § 2255 motion to vacate, set aside, or correct
sentence and will be treated as such.
motion, Petitioner asserts that he was sentenced under the
residual clause of the Armed Career Criminal Act
(“ACCA”). Petitioner further asserts that, under
Johnson v. United States, 135 S.Ct. 2551 (2015)
(holding that ACCA's residual clause violates due
process), and Welch v. United States, 136 S.Ct. 1257
(2016) (finding that the Johnson holding applies
retroactively), he is entitled to be resentenced. For reasons
explained below, Respondent will not be required to file an
answer, and this motion will be dismissed as duplicative.
filed the present § 2255 motion while his original
§ 2255 motion was pending in this Court. Mack v.
United States, Nos. 3:14-cv-569; 3:09-cr-98 [Doc. 90].
In the original § 2255 motion, Petitioner filed what is
construed to be a motion to amend his original § 2255
motion to add the same Johnson-based claims offered
in the transferred § 2255 motion. Id. [Doc.
97]. The United States filed a response to the amended
motion, specifically addressing the Johnson claim,
arguing that the claim is untimely, and alternatively,
without merit. Id. [Doc. 98]. That § 2255
motion remains pending before the Court.
when a numerically second § 2255 motion is filed before
adjudication of an initial § 2255 motion is complete,
the district court should construe the second § 2255
motion as a motion to amend the pending § 2255 motion,
and not as a “second or successive motion” to
vacate. Clark v. United States, 764 F.3d 653, 658
(6th Cir. 2014) (citing Ching v. United States, 298
F.3d 174, 177 (2d Cir. 2002)); Gonzalez v. United
States, No. 13-CR-20813-01, 2017 WL 2874739, at *3 (E.D.
Mich. July 6, 2017) (“[M]otions to amend that are
submitted before the consideration of an initial § 2255
claim is “decisively complete” are not second or
successive applications for habeas relief.” (quoting
Clark, 764 F.3d at 658).
noted, Petitioner has filed a motion to amend his original
§ 2255 motion to add a Johnson claim. Given
that the instant § 2255 motion duplicates the amended
motion, in that it asserts the same Johnson-based
claim currently pending in the original § 2255 motion,
construing the instant § 2255 motion as a motion to
amend would be pointless and a waste of judicial resources.
sister court in this circuit has recognized, a litigant
“ha[s] no right to maintain two separate actions
involving the same subject matter at the same time in the
same court and against the same defendant.”
Hesselink v. Coakley, No. 4:13 CV 2697, 2014 WL
1270610, at *2 (N.D. Ohio Mar. 26, 2014) (observing that a
§ 2241 petition filed while a federal prisoner's
§ 2255 motion was pending typically would be dismissed
as duplicative of the § 2255 motion).
Court thus finds that the § 2255 motion sub
judice is duplicative and that it should be dismissed in
the interests of judicial economy and to prevent burdening
Respondent with having to defend against concurrent
litigation of the same claim.
the Court will exercise its discretion and will
DISMISS this § 2255 motion without
prejudice. See Slack v. McDaniel, 529 U.S. 473, 478
(2000) (explaining that federal courts have “due
flexibility to prevent vexatious litigation, ” with
respect to duplicative mixed petitions); Link v. Wabash
R. Co., 370 U.S. 626, 630-31 (1962) (observing that
federal courts have “inherent power, governed not by
rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases”)
(internal quotation marks omitted); Bowling v.
White, No. 15-6318, 2017 WL 2471262, at *7 (6th Cir.
June 8, 2017) (finding that, where a petitioner's
original § 2254 petition was pending on appeal,
interpreting a later-filed § 2254 petition as meeting
the “in custody” requirement would be duplicative
of the earlier § 2254 petition and would require
dismissal under 28 U.S.C. § 2244); Christian v.
Trombley, No. 2:07-10900, 2007 WL 1266167, at *1 (E.D.
Mich. Apr. 30, 2007) (dismissing a duplicate habeas corpus
petition without prejudice).
28 U.S.C. § 2253(a) and (c), a petitioner may appeal a
final order in a habeas proceeding only if he is issued a
COA, and a COA may only be issued where a Petitioner has made
a substantial showing of the denial of a constitutional
right. Where a court dismisses a § 2255 petition on
procedural grounds, a COA will issue upon a showing that
reasonable jurists would debate whether a valid claim has
been stated and whether the court's procedural ruling is
correct. Slack, 529 U.S. at 484.
Court finds that Petitioner has failed to make a substantial
showing of the denial of a constitutional right because
reasonable jurists would not disagree about whether the Court
correctly ruled that the § 2255 motion is duplicative;
thus, he will be DENIED a certificate of
appealability. Fed. R. App. P. 22(b); Slack, 529
U.S. at 484.
the Court will CERTIFY that any appeal in
this matter would not be taken in good faith., 28 U.S.C.
§ 1915(a)(3), and will DENY Petitioner
leave to proceed in forma pauperis on appeal.
APPROPRIATE ORDER WILL ENTER