United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
S. ANAND, UNITED STATES MAGISTRATE JUDGE
Joseph Michael Mooney filed the instant § 2255 motion to
vacate his sentence on November 26, 2018,  and attempts to
raise a claim based on the Supreme Court's decision in
Sessions v. Dimaya, 584 U.S., 138 S.Ct. 1204 (Apr.
17, 2018). (Doc. 250). This Court has no jurisdiction
over the instant §2255 motion.
on July 23, 2007, a jury in this Court convicted Movant of
interstate enticement of a minor to engage in sexual activity
and aggravated sexual abuse with a minor, and Chief U.S.
District Judge Thomas W. Thrash, Jr. sentenced Movant to a
net total of 360 months of imprisonment and a life term of
supervised release. (See Docs. 52, 67); United
States v. Mooney, 303 Fed.Appx. 737, 739 (11th Cir.
2008). The Eleventh Circuit affirmed Movant's convictions
and sentences on December 16, 2008, Mooney, 303
Fed.Appx. at 743, and the United States Supreme Court denied
Movant's application for a petition of certiorari on
October 5, 2009. Mooney v. United States, 558 U.S.
filed his first § 2255 motion through counsel on October
4, 2010, and proceeded pro se after counsel withdrew
from the case. (Docs. 104, 111, 113). On April 17, 2013,
Judge Thrash adopted the undersigned's report and
recommendation [Doc. 173] over Movant's objections, which
recommended denying the § 2255 motion. (Doc. 179). The
Eleventh Circuit denied Movant's motion for a certificate
of appealability on March 21, 2014, and denied his motion for
reconsideration on May 15, 2014. (Docs. 206-07). In the
interim, Movant filed an amended motion to vacate his
sentence [Doc. 176] on April 9, 2014, which the Court denied
[Doc. 213] and the Eleventh Circuit affirmed [Doc. 229].
subsequently filed a motion for writ of error audita
querela pursuant to 28 U.S.C. § 1651 [Doc. 231],
which the Court construed as a second or successive §
2255 motion and dismissed for lack of subject matter
jurisdiction because Movant had not sought permission from
the Eleventh Circuit, and the Eleventh Circuit affirmed that
dismissal. (Docs. 234, 243). Movant then filed a motion to
vacate his sentence pursuant to Rule 60(b)(4) of the Federal
Rules of Civil Procedure [Doc. 247], which the Court also
construed as a second or successive §2255 motion and
dismissed for lack of subject matter jurisdiction. (Doc.
August 17, 2018, Movant filed an application with the
Eleventh Circuit for leave to file a second or successive
§ 2255 motion raising claims of actual innocence and
ineffective assistance of counsel, which the Eleventh Circuit
denied. (See Doc. 249); see also Mooney v.
United States, No. 18-13478 (11th Cir. Sept. 10, 2018)
executed the instant § 2255 motion on November 26, 2018,
raising his Dimaya claim. (Doc. 250). On December 7,
2018, Movant filed a motion to stay this action until such
time as he could seek permission from the Eleventh Circuit to
file a second or successive petition. (Doc. 251). Movant then
filed an application for permission to file a second or
successive petition with the Eleventh Circuit on December 10,
2018, raising, inter alia, his Dimaya
claim. See Mooney v. United States, No.
18-15098 (11th Cir. Jan. 9, 2019) (PACER). On January 9,
2019, the Eleventh Circuit denied Movant's request.
Id. Because Movant has not received authorization,
this Court has no subject matter jurisdiction and this action
must be dismissed. See 28 U.S.C. § 2255(h);
Farris v. United States, 333 F.3d 1211, 1216 (11th
IS THEREFORE RECOMMENDED that the instant motion to
vacate [Doc. 250] be DISMISSED.
to Rule 11 of the Rules Governing § 2255 Cases,
“[t]he district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant. . . . If the court issues a certificate, the court
must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2).” 28
U.S.C. § 2253(c)(2) provides that a certificate of
appealability (“COA”) may issue “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” In order for the certification
requirement to fulfill its function of weeding out frivolous
appeals, a court should not automatically issue a COA;
rather, the applicant must prove “something more than
the absence of frivolity” or “the existence of
mere ‘good faith' on his or her part.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
need not prove, however, that some jurists would grant the
§ 2255 motion. See Id. “The question is
the debatability of the underlying constitutional claim, not
the resolution of that debate.” See Lamarca v.
Secretary, Dep't of Corr., 568 F.3d 929, 934 (11th
Cir. 2009) (citing Miller-El, 537 U.S. at 325). In
other words, Movant need only demonstrate that
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Based on the foregoing discussion, reasonable jurists
would not find “debatable or wrong” the
undersigned's determination that Movant has not obtained
permission from the Eleventh Circuit to file another §
2255 motion, and as a result this Court has no jurisdiction.
See Slack , 529 U.S. at 484.
IT IS FURTHER RECOMMENDED that a COA be
motion to stay the instant proceedings [Doc. 251] is
DENIED AS MOOT.
Clerk is DIRECTED to terminate the reference
to the ...