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Reyes v. United States

United States District Court, W.D. North Carolina, Charlotte Division

February 1, 2017

MARIO ALBERTO REYES, Petitioner,
v.
UNITED STATES OF AMERICA. Respondent.

          ORDER

          Graham C. Mullen United States District Judge

         THIS MATTER is before the Court on an initial review of Petitioner's pro se motion for reduction in his sentence which the Court finds is in fact an unauthorized, successive § 2255 motion to vacate pursuant to 28 U.S.C. § 2255(h). For the reasons that follow, the Court finds that Petitioner's motion for relief will be DISMISSED.

         I. BACKGROUND

         On November 29, 2005, Petitioner was sentenced to a term of 200-months' imprisonment following his conviction for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841 (Count 1); and a consecutive term of 60-months' imprisonment following his conviction for using and carrying a firearm in furtherance of a drug trafficking crime and aiding and abetting the same, all in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count 4). (3:04-cr-00161, Doc. No. 55: Judgment). Petitioner's judgment was affirmed on appeal. See United States v. Reyes, 207 F. App'x 327 (4th Cir. 2006) (unpublished). On September 29, 2016, this Court dismissed Petitioner's pro se § 2255 motion to vacate his sentence and he did not appeal. Reyes v. United States, No. 3:16-cv-00663-GCM (W.D. N.C. Sept. 29, 2016).

         II. STANDARD OF REVIEW

         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings” in order to determine whether a petitioner is entitled to any relief.

         III. DISCUSSION

         Petitioner contends that he is entitled to relief based on the case of Beckles v. United States, No. 15-8544 (2016), in which the Supreme Court is considering the following questions:[1](1) Whether its holding in Johnson v. United States, 135 S.Ct. 2551 (2015), applies retroactively to cases on collateral review that challenge federal sentences enhanced under the residual clause in Section 4B1.2(a)(2) of the U.S. Sentencing Guidelines Manual (USSG);[2] (2) Whether the constitutional holding in Johnson applies to the residual clause in USSG § 4B1.2(a)(2), thereby rendering challenges to a sentence enhanced under it cognizable on collateral review?; and (3) Whether the mere possession of a sawed-off shotgun, which is an offense listed as a “crime of violence” exclusively in the commentary to USSG. § 4B1.2, remains a “crime of violence” after Johnson?

         Although Petitioner does not label his motion for relief from his sentence as a § 2255 motion to vacate, it is plain from the substance of his motion that the redress he is seeking is properly considered under the provisions of § 2255. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003) (It is well-settled that district courts are bound to “classify pro se pleadings from prisoners according to their contents, without regard to their captions.”) (internal citation omitted). Accordingly, the Court must treat his motion as a successive motion brought pursuant to § 2255. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005); Winestock, 340 F.3d at 206-07.

         The Antiterrorism and Effective Death Penalty Act provides, in relevant part, that “[a] second or successive motion [under Section 2255] must be certified as provided in Section 2244 by a panel of the appropriate court of appeals to contain-

(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 the movant 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).

         As § 2244 plainly demonstrates, the Circuit Court must grant authorization to file a successive § 2255 motion and Petitioner has offered no evidence that he has obtained the necessary authorization. Consequently, this Court is without jurisdiction to consider Petitioner's present claim for relief, and ...


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