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 Vacate.
was indicted by the Grand Jury for the Western District of
North Carolina on February 25, 2003, and charged, along with
eleven others, with conspiracy to possess with intent to
distribute at least five kilograms of cocaine and at least 50
grams of cocaine base, in violation of 21 U.S.C. § 846;
and one count of possessing with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C.
§ 841. (Crim. Case No. 5:03-cr-12-RLV-CH-5: Doc. No. 3:
Sealed Indictment). Several months later, Petitioner entered
into a plea agreement with the Government, in which he agreed
to plead guilty to the conspiracy charge, and the Government
agreed to dismiss the remaining § 841 count.
See (Id., Doc. No. 149: Plea Agreement).
The Court ultimately sentenced Petitioner to 292 months of
imprisonment and issued the judgment on April 15, 2009.
(Id., Doc. No. 389: Judgment). Petitioner did not
than three years later, on November 12, 2012, Petitioner
filed a motion to vacate his sentence under 28 U.S.C. §
2255, seeking relief from his designation as a career
offender in light of United States v. Simmons, 649
F.3d 237 (4th Cir. 2011). (Id., Doc. No. 508: Civil
No. 5:12cv172-RLV (W.D. N.C. )). On October 30, 2013, this
Court denied and dismissed the motion to vacate as untimely.
(Id., Doc. No. 546). Petitioner filed the instant
motion to vacate on May 30, 2017, placing the petition in the
prison mailing system on May 26, 2017. In his pending
motion, Petitioner contends that he is entitled to sentencing
relief in light of Mathis v. United States, 136
S.Ct. 2243 (2016).
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 May 30, 2017, seeking
to have the Court vacate his conviction and sentence in
Criminal Case No. 5:03-cr-12-RLV-CH-5. 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 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.
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 ...