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 under Rule 60B.” (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.
November 3, 2000, pro se Petitioner pled guilty in this Court
to conspiracy to possess with intent to distribute, and
distribution of, a quantity of cocaine and cocaine base
within 1000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1), 846, and 860. See (Criminal
Case No. 5:99-cr-70-RLV-4: Doc. No. 71: Entry and Acceptance
of Guilty Plea). On August 13, 2001, this Court sentenced
Petitioner to a total of 360 months of imprisonment, entering
judgment on August 30, 2001. (Id., Doc. No. 121:
appealed, and on May 23, 2002, the Fourth Circuit Court of
Appeals affirmed Petitioner's conviction and sentence in
an unpublished opinion. See (Id., Doc. No.
135). On September 13, 2004, Petitioner filed her first
motion to vacate, set aside, or correct sentence, pursuant to
28 U.S.C. § 2255. (Id., Doc. No. 141: Civ. No.
5:04cv152). On November 10, 2004, this Court denied and
dismissed the motion to vacate as time-barred. (Id.,
Doc. No. 142).
October 31, 2016, Petitioner filed the instant motion, which
she describes as a motion “to vacate her sentence under
Rule 60B.” In the pending motion, Petitioner contends
that she was wrongfully convicted in this Court because she
“is not the person named in the indictment” in
her underlying criminal case. (Civ. Doc. No. 1 at 1). On
January 19, 2017, former U.S. President Barack Obama commuted
Petitioner's sentence to expire on May 19, 2017, leaving
intact and in effect Petitioner's term of supervised
release. (Criminal Case No. 5:99-cr-70-RLV-4, Doc. No. 223).
Furthermore, the Bureau of Prisons website indicates that
Petitioner was released from her custodial sentence on May
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 on October 31, 2016, seeking to have
the Court vacate her conviction and sentence in Criminal Case
No. 5:99-cr-70-RLV-4. As noted, Petitioner filed a previous
motion to vacate the same conviction and sentence, and this
Court denied the motion to vacate as time-barred. 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 she 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
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.
THEREFORE, ORDERED that
1. Petitioner's Motion to Vacate, (Doc. No. 1), is
DISMISSED as a ...