Thursday, October 08, 2015

U.S. v. McGee, 2015 WL 5203846 (9/8/15) (Okl.) (unpub'd) - The 10th applies the certificate of appealability requirements to preclude relief despite California's change in classification of Mr. McGee's offense to a misdemeanor. Mr. McGee was given a life sentence under 21 U.S.C. § 841(b)(1)(A) due to two prior state-court convictions for felony drug offenses. Due to a recent California initiative, the state court amended nunc pro tunc the judgment on one of his priors to be a misdemeanor, rather than a felony, conviction. Mr. McGee filed a § 2255, contending his life sentence was no longer mandatory with only one felony drug prior. The district court dismissed the § 2255 on the ground that it was a successive motion requiring 10th authorization. The 10th indicates the motion should probably not be considered successive because Mr. McGee could not have raised the point he raises now when he filed his first motion. But the 10th says it didn't have jurisdiction because it could not grant a certificate of appealability. That certificate requires the arguable denial of a constitutional right. According to the 10th, Mr. McGee was only relying on a statutory interpretation. Appeal dismissed. It's likely Mr. McGee was entitled to relief in district court, but because the district court erred when it found the motion to be successive, Mr. McGee has no recourse.