UNITED STATES DISTRICT COURT my. 1
FOR THE DISTRICT OF COLUMBIA  5 2311!

Cterk, its. District & Bankruptcy
Court: far the District at Columbta

 

 

UNITED STATES OF AMERICA,

v. Case No. 72-cr—1328 (RCL)

EUGENE J. CUNNINGHAM,

Defendant/Petitioner.

 

MEMORANDUM OPINION

Pro se defendant/petitioner Eugene J. Cunningham (“Cunningham”) seeks a Certiﬁcate of
Appealability [ECF No. 32] pursuant to 28 U.S.C. § 2244 (2012) to challenge the legality of his
conviction and sentence for two counts Of felony murder in this Court. Cunningham has also
ﬁled a Motion for Reconsideration of this Court’s previous denial of his petition attacking his
conviction and sentence under § 2255 [Mem. Op. and Order, ECF No. 31], a Motion for Leave to
Proceed In Forma Pauperis [ECF No. 33], and a Motion to Compel a Certiﬁcate of Appealability
[ECF No. 35]. For the following reasons, Cunningham’s Motions will be denied.
1. BACKGROUND

Cunningham was convicted in 1973 for armed robbery and two counts of ﬁrst degree
murder under the District of Columbia’s felony murder statute, DC. Code Ann. § 22—2401 (now
DC. Code Ann. § 22-2101 (2014)). Cunningham is currently serving consecutive sentences Of
twenty years to life on the murder convictions. On June 16, 2005, Cunningham ﬁled a petition

for a writ of habeas corpus challenging his conviction and it was denied. Cunningham v. United
States, No. 05-1200, 2005 WL 1903374, *1 (D.D.C. July 19, 2005). Cunningham appealed, and
the Court of Appeals for the District of Columbia Circuit afﬁrmed this Court’s decision.

Cunningham v. United States, 207 Fed. App’x 5, 5 (2006). Cunningham ﬁled a second habeas

corpus petition on June 27, 2007, and this Court transferred the petition to the Court of Appeals
for its consideration.

On September 27, 2010, Cunningham ﬁled a third petition to correct, set aside, or vacate
his sentence under 28 U.S.C. § 2255 (2012). Writ of Error, ECF No. 21. Because this Court
lacked jurisdiction over Cunningham’s successive § 2255 petitions, it transferred the petition to
the Court of Appeals for consideration on December 16, 2010. Order, ECF No. 22. In 2013,
Cunningham sought to ﬁle his fourth motion under § 2255. The Court denied Cunningham’s
Motion for Leave to File on July 26, 2013 for lack of jurisdiction, and it declined to transfer the
case to the Court of Appeals because Cunningham’s petition was without merit. Mem. & Order,
ECF No. 26. Cunningham ﬁled a Motion for Reconsideration of the Court’s decision on August
15, 2013.1 Mot. for Recons., ECF No. 31. Cunningham then ﬁled a Motion for a Certiﬁcate of
Appealability, ECF No. 32, and a Motion for Leave to Proceed In F orma Pauperis, ECF No. 33,
on June 12, 2014. On November 6, 2014, Cunningham ﬁled a Motion for Compel a Certiﬁcate
of Appealability. Mot. to Compel, ECF No. 35.

II. DISCUSSION

A Certiﬁcate of Appealability may issue from a panel of the appropriate court of appeals
only if a petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(0); see § 2255(h); § 2244(b)(3). Cunningham may make a “substantial showing”
if he can “demonstrate that reasonable jurists would ﬁnd the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 US. 473, 484 (2000); see

also United States v. Mitchell, 216 F.3d 1126, 1130 (DC. Cir. 2000).

Cunningham’s Motion for ReconSideration does not address the Court’s Jurisdiction over his successwe

§ 2255 motions and does not challenge the basis of the Court’s ruling. Instead, Cunningham repeats his previous
arguments about ineffective counsel and an intervening change in controlling law. Mot. for Recons. 2—3, 7, ECF
No. 31. These two grounds are identical to those raised in Cunningham’s fourth motion under § 2255. Thus, the
Court will construe the Motion as a new successive habeas ﬁling, and will deny the Motion for lack of jurisdiction.

2

‘ First, a Certiﬁcate of Appealability must be sought from the DC. Circuit. Cunningham
has not sought certiﬁcation ﬁ'om the DC. Circuit, and this Court still lacks jurisdiction to address
his claims. 28 U.S.C. § 2253(c); Harris v. United States, 522 F. Supp. 2d 199, 203 (D.D.C.
2007); Mem. & Order, ECF No. 26.

Second, the Court may, “in the interest of justice,” transfer Cunningham’s request for a
Certiﬁcate of Appealability to the DC. Circuit Court under 28 U.S.C. § 1631 (2012). The Court,
however, declines to transfer the matter because Cunningham’s arguments are without merit.
Cunningham argues that his sentence is “invalid due to a[n] intervening change of law” and
“ineffective assistance of appellate counsel.” Request for Certiﬁcate of Appealability 2, ECF
No. 32. Cunningham’s request is an attempt to revisit a denial of his claims in prior habeas and
§ 2255 proceedings. These two arguments were raised in Cunningham’s most recent § 2255
ﬁling that the Court denied because they were “completely without merit.” Mem. & Order, ECF
No. 26. Additionally, in 2006, the DC. Circuit addressed both of Cunningham’s arguments and
they were dismissed. Cunningham, 207 Fed. App’x at 5. For these reasons, Cunningham’s
request for a Certiﬁcate of Appealability will be denied.

111. CONCLUSION

For the foregoing reasons, Cunningham’s Motion for Reconsideration [ECF No. 31],
Request for Certiﬁcate of Appealability [ECF No. 32], Motion for Leave to Proceed In Forma
Pauperis [ECF No. 33], and Motion to Compel a Certiﬁcate of Appealability [ECF No. 35] will

be denied. A separate Order accompanies this Memorandum Opinion.

Signed this [6442!” of December 2014.

c. W
RO E C. LAMBERTH
United States District Court

