United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees 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
14, 2009, after a jury trial, pro se Petitioner Jaime
Puente-Vazquez was found guilty in this Court of conspiracy
to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 846 and 841(b)(1)(A), and possessing
with intent to distribute five or more kilograms of cocaine
and aiding and abetting the same, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.
See (Criminal Case No. 5:08-cr-27-RLV-DCK-7: Doc.
No. 160: Jury Verdict). This Court sentenced Petitioner to a
total of 151 months of imprisonment, entering judgment on
March 5, 2010. (Id., Doc. No. 224: Judgment).
appealed, and on July 22, 2011, the Fourth Circuit Court of
Appeals affirmed Petitioner's conviction and sentence in
an unpublished opinion. See (Id., Doc.
279). Petitioner filed a motion to vacate on October 15,
2012, bringing ineffective assistance of counsel claims.
(Id., Doc. No. 295: Civ. No. 5:12cv157). On March
13, 2014, this Court denied and dismissed the motion to
vacate with prejudice on the merits. (Id., Doc. No.
308). Petitioner filed the instant motion to vacate on March
28, 2017, placing the petition in the prison mailing system
on March 23, 2017. In his pending motion, Petitioner again
brings various ineffective assistance of counsel claims.
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 March 23, 2017, seeking
to have the Court vacate his conviction and sentence in
Criminal Case No. 5:08-cr-27-RLV-DCK-7. As noted, Petitioner
filed a previous motion to vacate the same conviction and
sentence, and this Court denied the motion to vacate on the
merits with prejudice. Thus, this is a successive petition.
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.” Petitioner
has not shown that he has obtained the permission of the
Fourth Circuit Court of Appeals 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.
IS, THEREFORE, ORDERED that
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.
McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must ...