United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].
I. PROCEDURAL HISTORY
On December 31, 2003, Petitioner pled guilty pursuant to a written plea agreement to two separate charges of bank robbery, in violation of 18 U.S.C. § 2113(a). [Criminal Case No. 1:03-cr-00088-MR-1, Doc. 16: Plea Agreement; Doc. 19: Entry and Acceptance of Guilty Plea; Criminal Case No. 1:03-cr-00089-MR-1, Doc. 18: Plea Agreement; Doc. 21: Entry and Acceptance of Guilty Plea]. The bank robbery in Case No. 1:03-cr-00088-MR-1 occurred on July 19, 2002, in Polkville, North Carolina, and the bank robbery in Case No. 1:03-cr-00089-MR-1 occurred on September 8, 2003, in Candler, North Carolina. On March 10, 2004, Petitioner entered a straight-up guilty plea to a separate bank robbery which occurred in Lenoir City, Tennessee, in Criminal Case No. 1:04-cr-00018-MR. [Criminal Case No. 1:04-cr-00018-MR: Doc. 6: Entry and Acceptance of Guilty Plea]. On September 1, 2004, this Court sentenced Petitioner to 293 months' imprisonment on the bank robbery conviction in Case No. 1:04-cr-00018-MR, and to 240 months' imprisonment on the bank robbery conviction in Case Nos. 1:03-cr-00088-MR and 1:03-cr-00089-MR, with the sentences to be served concurrently. [Criminal Case No. 1:03-cr-00088-MR-1, Doc. 27: Judgment]. Petitioner appealed, and on March 13, 2006, the Fourth Circuit Court of Appeals vacated and remanded for resentencing under United States v. Booker , 543 U.S. 220 (2005).
On June 12, 2006, this Court again sentenced Petitioner to 293 months' imprisonment on the bank robbery conviction in Case No. 1:04-cr-00018-MR, and to 240 months' imprisonment on the bank robbery conviction in Case Nos. 1:03-cr-00088-MR and 1:03-cr-00089-MR, with the sentences to be served concurrently. [Criminal Case No. 1:03-cr-00088-MR, Doc. 30: Amended Judgment]. Petitioner appealed and on July 12, 2007, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion. United States v. Shull, 232 F.App'x 367 (4th Cir. 2007). The Supreme Court denied Petitioner's petition for writ of certiorari on November 13, 2007. Shull v. United States , 552 U.S. 1030 (2007).
On April 8, 2008, Petitioner filed a motion to vacate his conviction and sentence for the Tennessee bank robbery. [Criminal Case No. 1:04-cr-00018-MR, Doc. 33]. On February 19, 2009, the Court denied Petitioner's motion to vacate. [Id., Doc. 38].
Petitioner dated the instant motion to vacate July 11, 2014, and it was stamp-filed in this Court on July 23, 2014. In the motion to vacate, Petitioner contends that his 293-month sentence is unconstitutional in light of the U.S. Supreme Court's recent decision in Alleyne v. United States , 133 S.Ct. 2151 (2013).
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
As noted, this is the second motion to vacate challenging Petitioner's 293-month sentence in Case No. 1:04-cr-00018-MR. Pursuant to 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Thus, Petitioner must first obtain an order from the United States Court of Appeals for the Fourth Circuit before this court will consider any successive petition under 28 U.S.C. § 2255.
Petitioner has not shown that he has obtained the permission of the United States Court of Appeals for the Fourth Circuit to file a successive petition. See also 28 U.S.C. § 2255(h) ("[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals."). Accordingly, Petitioner's successive petition must be dismissed. See Burton v. Stewart , 549 U.S. 147, 153 (2007) (holding that failure of petitioner to obtain authorization to file a "second or successive" petition deprived the district court of jurisdiction to consider the second or successive petition "in the first place").
For the foregoing reasons, Petitioner's Motion to Vacate will be dismissed as a ...