ORDER

JAMES S. MOODY, Jr., District Judge.

THIS CAUSE comes before the Court upon Petitioner Colonel I. Nelson's Petition for Equitable Relief or Remedy at Law, which the Court construes as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1). By his motion, Petitioner asserts that he is entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), declared retroactive by Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016). Because Petitioner's motion is an unauthorized, successive § 2255 motion, it should be dismissed.

BACKGROUND

Pursuant to a plea agreement, Petitioner entered a guilty plea to (1) conspiring to possess with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). (CR Docs. 51-59). On April 24, 2009, the Court sentenced Petitioner to 160 months' imprisonment. (CR Doc. 73). On December 27, 2010, Petitioner filed a motion pursuant to § 2255, which was dismissed as time barred. See Nelson v. United States, No. 8:10-cv-2701-T-30MAP (M.D. Fla. 2011).

DISCUSSION

Petitioner's present § 2255 motion is a second or successive motion. Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, federal prisoners who want to file a second or successive motion to vacate, set aside, or correct a sentence must move in the appropriate court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of a second or successive motion only if it determines that the motion contains claims which rely on either:

28 U.S.C. § 2255(h).

Because Petitioner has not received authorization to file a second or successive habeas petition from the Eleventh Circuit, this Court lacks jurisdiction to consider his motion and it should be dismissed. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) ("Without authorization [from the appropriate court of appeals, a] district court lacks jurisdiction to consider a second or successive petition.").

However, for Petitioner's benefit, the Court notes that Petitioner would not be entitled to relief under Johnson. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act, ("ACCA"), § 924(e)(2)(B)(ii), defining a violent felony as a crime "involv[ing] conduct that presents a serious potential risk of physical injury to another," is unconstitutionally vague. See Johnson, 135 S. Ct. at 2563.

Petitioner, however, was not sentenced under the ACCA. Rather, Petitioner was sentenced pursuant to the career criminal guideline United States Sentencing Guideline § 4B1.1. (PSR at ¶ 32). In United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), the Eleventh Circuit held that the Supreme Court's decision in Johnson did not apply to U.S.S.G. § 4B1.2.1 This Court is bound by that decision. Thus, Petitioner would not be entitled to relief under Johnson.

CONCLUSION

Accordingly, it is therefore ORDERED AND ADJUDGED that:

1. Petitioner Colonel I. Nelson's construed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED.

2. The Clerk is directed to terminate any pending motions and close this case.

DONE and ORDERED.