United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge.
MATTER is before the Court on Petitioner's
“Retroactive Motion under 18 U.S.C. 2255 Based on
Dean v. United States or in the Alternative Rule
60(b)” [Doc. 1]. For the reasons that follow, the Court
finds that this is an unauthorized, successive petition. The
Court therefore dismisses the Petitioner's Motion.
March 9, 2006, Petitioner Reymundo Monge Rodriguez was found
guilty after a jury trial of (1) conspiracy to possess with
intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846 (Count One); (2)
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) (Count Two); (3)
possession of a firearm by an illegal alien, in violation of
18 U.S.C. § 922(g)(5) (Count Three); and (4) carrying
and using a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) (Count Four). [Crim. Case No. 1:06-cr-4-MR-1
(“CR”), Doc. 23: Jury Verdict].
November 2, 2006, this Court sentenced Petitioner to 235
months' imprisonment on Counts One and Two, to 120
months' imprisonment on Count Three to be served
concurrently, and to 60 months' imprisonment on Count
Four, to be served consecutive to Counts One, Two, and Three,
for a total term of 295 months' imprisonment. [CR Doc.
27: Judgment]. Judgment was entered on November 13, 2006.
[Id.]. Petitioner did not appeal.
October 31, 2007, Petitioner filed a motion to vacate,
contending as his sole ground for relief that his counsel had
not filed an appeal on Petitioner's behalf, despite
Petitioner's instruction to counsel to do so. This Court
granted the motion to vacate, entering an amended judgment on
December 3, 2007. [CR Docs. 31, 33]. Petitioner then appealed
from his conviction and sentence, and the Fourth Circuit
Court of Appeals affirmed Petitioner's conviction and
sentence on December 9, 2008. [CR Doc. 43]. On December 23,
2015, this Court reduced Petitioner's sentence to 248
months pursuant to U.S.S.G. Amendment 782. [CR Doc. 59].
filed a second motion to vacate on June 22, 2016, contending
that he is entitled to sentencing relief under Johnson v.
United States, 135 S.Ct. 2551 (2015). [CR Doc. 60]. On
September 26, 2016, this Court denied the motion to vacate on
the merits and dismissed the petition. [CR Doc. 61].
Petitioner appealed and on February 28, 2017, the Fourth
Circuit dismissed Petitioner's appeal. [CR Doc. 64].
filed the instant Section 2255 motion to vacate on May 15,
2017, seeking relief under the Supreme Court's recent
decision in Dean v. United States, 137 S.Ct. 1170
(2017). Alternatively, Petitioner moves for reconsideration
of the denial of a certificate of appealability with respect
to his first motion to vacate. [Doc. 1].
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).
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, 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
alternative request for reconsideration of this Court's
denial of the certificate of appealability with respect to
his first motion to vacate is without merit. The Court denied
a certificate of appealability, finding that Petitioner had
not made a substantial showing of the denial of a
constitutional right. [Doc. 61]. Petitioner appealed, and the
Fourth Circuit also denied a certificate of appealability on
the same grounds. [Doc. 64]. The Court finds no basis in the
law for reconsideration of such denial.