UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMDIA

UNITED STATES OF AMERICA,
Criminal No. 92-234-03 (GK)

FILED
Aus1z2o1o

C|erk, U.S. Dfstrict and
Bankruptcy Courts

V.

JEROME A. JACKSON,

Defendant.

`r`/\r`.¢\¢`a`/\/@

MMORANDUM OPINION

This matter comes before the Court on Defendant Jerome A.
Jackson's QrQ_ s§_ “Motion for modification of sentence §4Bl.l
Pursuant to Enhancement under Career Offender” [Dkt. No. 484].
Defendant asks this Court to reduce his current sentence of
concurrent terms of life imprisonment for a 1992 conviction for
unlawful distribution of, and conspiracy to distribute, cocaine.
Upon consideration of the Motion, the Government’s Response,
Defendant’s Reply, the entire record herein, and for the reasons
discussed below, Defendant's Motion is denied, and the Government's
Motion is granted.
1 . BACKGRQUN:F

On March 29, l982, Defendant was arrested for possession with
the intent to distribute heroin, in violation of D.C. Code § 48-

904.0l(a)(l). On October 6, l982, Defendant was arrested for the

1 Unless otherwise noted, the facts set forth herein are
undisputed and drawn from Defendant’s Motion, at 6-9, l2, and the

Government's Motion, at l-3.

same offense.

On April 19, 1983, the Defendant was convicted on both
offenses, and. the Superior Court of the District of Columbia
sentenced him to concurrent identical terms of two to six years.
The Superior Court judge did not consolidate the cases, which were
filed separately.

On December 3, 1992, a jury convicted Defendant in federal
district court of one count of conspiracy to distribute cocaine and
two counts of unlawful distribution of fifty or more grams of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii),
and 846. Pursuant to the Federal Sentencing Guidelines and
Defendant’s classification as a career offender due to his criminal
history, Judge Oberdorfer sentenced Defendant to concurrent terms
of life imprisonment on February 18, 1994.

Defendant filed a § 2255 motion on October 7, 1997 [pkt. No.
328], which, after several replies and supplemental motions and
memoranda by Defendant, was ultimately denied by this Court on
April 22, 2003. [Dkt. No. 443]. The denial of Defendant’s Motion
was affirmed by the Court of Appeals on November 5, 2004. [Dkt. No.
465].

On August 12, 2009, Defendant filed a motion styled “Motion
for modification of sentence §4B1.1 Pursuant to Enhancement under
Career Offender” [Dkt. No. 474]. ln response, on September 28,

2009, the Government filed a “Motion For An Order Construing

Defendant’s [Motion] as Motion Under 28 U.S.C. § 2255, and
Transferring Same to D.C. Circuit,” in order for the Court of
Appeals to determine whether to certify the Defendant’s successive
§ 2255 Motion. [Dkt. No. 476].

On December 28, 2009, this Court granted the Government’s
Motion to re-characterize Defendant’s filing as a § 2255 motion and
transferred it to the Court of Appeals. [Dkt. No. 483]. On the same
day, Defendant filed the instant Motion, an identical copy of the
August 12, 2009, “Motion for modification, of sentence §4B1.1
Pursuant to Enhancement under Career Offender,” with this Court. On
March 12, 2010, the Government filed, in response, a Motion for an
Order Construing Defendant’s Motion, similar to the Motion it filed
on September 28, 2009. [Dkt. No. 487].

II. ANALYSIS

1f Defendant does not obtain certification from the Court of
Appeals, this Court has no subject matter jurisdiction to hear
Defendant’s Motion. See United States v. Levi, 1997 WL 529069,
(D.C. Cir. July 29, 1997) (district court lacked jurisdiction to
consider successive § 2255 motions because appellant failed to
obtain requisite authorization from the circuit court).

Defendant alleges that the sentencing court incorrectly
considered his two prior drug convictions from 1982 as separate
offenses rather than consolidating them, thereby increasing his

number of criminal history points under the Sentencing Guidelines

and elevating' his status to the category of career offender,
pursuant to U.S.S.G. § 4B1.1.

Defendant’s Motion to reduce his sentence because of an
alleged error in his classification is controlled by 28 U.S.C. §
2255(a) (“[A] prisoner in custody . . . claiming . . . that the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the
sentence.”).

While the pro se litigant in this case styled his filing as a
“Motion for modification of sentence §4B1.1 Pursuant to Enhancement
under Career Offender,” it in fact requests the same avenue of
relief as a motion made under 28 U.S.C. § 2255, regardless of how
the defendant labeled it. See United States v. Palmer, 296 F.3d

1135, 1145 (D.C. Cir. 2002) (construing a pro se party’s Rule 33

motion liberally and treating it as a motion under § 2255); see

also Haines v. Kerner, 404 U.S. 5l9, 520 (1972) (per curiam)
(allegations of a pro se litigant, “however inartfully pleaded,”
are subject to “less stringent standards than formal pleadings
drafted by 1awyers”). This finding is consistent with the Court's
December 28, 2009, Order to re-characterize Defendant’s previous
identical August 12, 2009, Motion under § 2255.

Because Defendant had already filed a § 2255 motion in 1997,

this duplicative December 28, 2009, Motion constitutes a “second or

successive” one. Under § 2255(h), a defendant making a “second or
successive” motion must have it certified by the appropriate court
of appeals in order for the district court to consider it.2
Defendant argues that this Court cannot properly re-
characterize his December 28, 2009, Motion under § 2255 because it
did not “warn[] the litigant that this re-characterization mean[t]

that any subsequent § 2255 motion will be subject to the

restrictions on ‘second or successive’ motions.” Def.’s Reply at 3
(quoting Castro v. United States, 540 U.S. 375, 376 (2003)). [Dkt.
No. 490].3

However, the Castro warning requirements for re-

characterization only apply to a pro se litigant’s first § 2255
motion. 1d. Whether Defendant was initially provided warnings about
the preclusive effects of making his first § 2255 motion on October

7, 1997, is not before the Court; the Castro requirements do not

2 Pursuant to 28 U.S.C. § 1631 and § 2255(h), in order to grant
certification, the Court of Appeals must determine whether the
“second or successive” § 2255 motion contains:

(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 him 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. 28 U.S.C. §
2255(h)(1)-(2).

3 The Court has amended Defendant’s quotation from Castro to
correct any inadvertent errors in citation.

__5_

apply to “second or successive” § 2255 motions, as is the case here
with Defendant’s motions on August 12, 2009, and December 28, 2009,
Therefore, Defendant’s Motion must be transferred to and certified
by the Court of Appeals before this Court has jurisdiction over the
matter.
III. CONCLUSION

For the foregoing reasons, Defendant’s Motion is denied, and
the Government's Motion is granted. This case is hereby transferred

to the Court of Appeals for a certification determination.

z a@&a@él

QM_,,(,)/¢,.,Q:Q: /3 , 2010 <;iadys Kess'i@r ll

U.S. District Court Judge

Copies to: Attorneys of record via ECF
and

Jerome A. Jackson

Fed. Reg. 17292-016

P.O. Box 1000 - Medium
Federal Correctional Comp1ex
Petersburg, VA 23804

