United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence filed under 28 U.S.C.
§ 2255. (Doc. No. 1). For the reasons that follow, the
Court finds that this is an unauthorized, successive
petition, and the Court therefore dismisses the Motion to
15, 2005, pro se Petitioner Kimberly Baker pled guilty in
this Court to conspiracy to possess with intent to distribute
cocaine, under 21 U.S.C. § 846. (Case No.
3:04-cr-222-RJC-CH-2, Doc. No. 58: Acceptance and Entry of
Guilty Plea; Doc. No. 96: Judgment). On March 6, 2006,
Petitioner was sentenced to 240 months of imprisonment.
(Id., Doc. No. 96). Petitioner did not appeal.
August 24, 2006, Petitioner filed a Section 2255 motion to
vacate, which this Court denied and dismissed on the merits
on November 14, 2007. (Id., Doc. Nos. 107, 126:
Civil No. 3:06cv364-RJC). On January 11, 2016, the Court
reduced Petitioner's sentence to 192 months of
imprisonment pursuant to U.S.S.G. Amendment 782.
(Id., Doc. No. 143). On February 13, 2017,
Petitioner filed the instant Section 2255 petition, placing
the petition in the prison mailing system on February 7,
2017. Petitioner raises two claims of ineffective assistance
of counsel in her motion to vacate.
STANDARD OF REVIEW
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. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
filed the instant motion to vacate on February 7, 2017,
seeking to have the Court vacate her conviction and sentence
in Criminal Case No. 3:04-cr-222-RJC-CH-2. As noted,
Petitioner filed a previous motion to vacate the same
conviction and sentence on August 24, 2006, and this Court
denied and dismissed that motion to vacate on the merits.
Thus, this is the second Section 2255 petition filed by
Petitioner challenging the conviction and sentence in
Criminal Case No. 3:04-cr-222-RJC-CH-2.
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 second or successive petition under 28
U.S.C. § 2255. Petitioner has not shown that she 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)
(stating that “[a] second or successive motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals”). Accordingly, this
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”).
foregoing reasons, the Court will dismiss Petitioner's
Section 2255 Motion to Vacate for lack of jurisdiction
because the motion is a successive petition and Petitioner
has not first obtained permission from the Fourth Circuit
Court of Appeals to file the motion. IT IS, THEREFORE,
Petitioner's Motion to Vacate, (Doc. No. 1), is DISMISSED
as a successive petition.
IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court
declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (in order to satisfy
§ 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong); Slack v.
McDaniel529 U.S. 473, 484 (2000) (when relief is denied
on procedural grounds, a petitioner must establish ...