United States District Court, D. North Dakota
ORDER DISMISSING DEFENDANT'S MOTION FOR HABEAS
L. Hovland, Chief Judge United States District Court
the Court is the Defendant's “Motion to Vacate
under 28 U.S.C. § 2255” filed on October 8, 2019.
See Doc. No. 630. For the reasons set forth below,
the motion is dismissed.
16, 2013, Fish was charged by way of indictment with one
count of conspiracy to possess with intent to distribute and
distribute controlled substances resulting in serious bodily
injury or death, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2; two counts of possession of a
controlled substance with intent to distribute and
distribution resulting in death, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2;
and three counts of possession of a controlled substance with
intent to distribute within a school zone, in violation of 21
U.S.C. §§ 841(a)(1), 860, and 18 U.S.C. § 2.
See Doc. No. 1. On July 10, 2014, Fish pled guilty,
pursuant to a written plea agreement, to an information
charging one count of conspiracy to possess with intent to
distribute and distribute a controlled substance in violation
21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2.
See Doc. Nos. 285, 305, and 307. On September 2,
2015, the Court sentenced Fish to 240 months imprisonment
with credit for time served. See Doc. No. 577. Fish
did not appeal.
September 6, 2016, Fish filed his first Section 2255 motion.
See Doc. No. 574. On September 5, 2017, the Court
denied the motion. See Doc. No. 605. Fish appealed.
The Eighth Circuit Court of Appeals appointed counsel to
represent Fish on his appeal of the denial of his Section
2255 motion. See Doc. Nos. 611 and 612. On January
15, 2019, the Eighth Circuit affirmed the denial of his
Section 2255 motion. See Doc. No. 613. On October 7,
2019, the United States Supreme denied his application for a
writ of certiorari. See Fish v. United States, No.
19-5469 (Oct. 7, 2019).
before the Court is Fish's second Section 2255 motion
filed on October 8, 2019. See Doc. No. 630. In his
latest Section 2255 motion, Fish contends he received
ineffective assistance of appellate counsel in relation to
his appeal of the denial of his first Section 2255 motion.
Court has reviewed the motion as required by Rule 4(b) of the
Rules Governing Section 2255 Proceedings. This is the second
Section 2255 motion the Defendant has filed and, thus, the
motion is clearly successive. Before a second or successive
Section 2255 motion may be filed in the district court, the
applicant must move the appropriate court of appeals for an
order authorizing the district court to consider the second
or successive motion. 28 U.S.C. §§ 2244(3) and
2255(h); United States v. Lambros, 404 F.3d 1034,
1036-37 (8th Cir. 2005). If a federal inmate files a
successive Section 2255 motion, the district court may either
dismiss the motion for failure to obtain the required
authorization or transfer the motion to the court of appeals.
Id. The record reveals the Defendant has not sought
authorization from the Eighth Circuit Court of Appeals to
file a second or successive motion under Section 2255 and,
thus, dismissal is appropriate.
contention that his second Section 2255 motion is not
successive because his first Section 2255 motion is still
pending is not persuasive. Motions to amend must be filed
before the district court renders judgment on the
initial petition. See United States v. Sellner, 773
F.3d 927, 931-32 (8th Cir. 2014) (holding that when a
petitioner files a second 2255 motion while the first 2255
motion is still pending before the district court, the second
motion is not successive and should be treated as a motion to
amend). This Court denied his first Section 2255 motion on
September 5, 2017. The Supreme Court denied his petition for
a writ of certiorari on October 7, 2019. The matter is final.
Furthermore, there is no Sixth Amendment right to counsel in
a Section 2255 proceeding and thus there is no constitutional
right to effective assistance of counsel in relation to an
appeal taken from the denial of a Section 2255 motion.
See Noe v. United States, 601 F.3d 784, 792 (8th
carefully reviewing the entire record and the relevant law,
the Court finds that the Defendant's motion is a second
or successive motion under 28 U.S.C. § 2255, filed
without first obtaining authorization from the Eighth Circuit
Court of Appeals under 28 U.S.C. § 2255(h). Accordingly,
the Court issues the following ORDER:
Fish's motion (Doc. No. 630) is
Court certifies that an appeal from the denial of this motion
may not be taken in forma pauperis because such an appeal
would be frivolous and cannot be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444-45
Based upon the entire record before the Court, dismissal of
the motion is not debatable, reasonably subject to a
different outcome on appeal, or otherwise deserving of
further proceedings. Therefore, a certificate of
appealability will not be issued by this Court. Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983); Tiedman v.
Benson, 122 F.3d 518, 520-22 (8th Cir. 1997). If the
defendant desires further review of his ...